Neutral Citation Number: [2011] UKUT 140 (AAC)

Appeal No: T/2011/02

 

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 30 NOVEMBER 2010

 

Before:

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

Patricia Steel, Member of the Upper Tribunal.

Leslie Milliken, Member of the Upper Tribunal.

 

 

Appellant:

GOLDMAN TRANSPORT LTD

 

 

Attendance:

 

For the Appellant: Mr Aris Aziz, Director

 

Appeal heard at: Victory House, 30-34 Kingsway, London

Date of hearing: 18 March 2011

Date of decision: 31 March 2011

 

 

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be dismissed.

 

 

Subject Matter:

 

Failure to reply to enquiries made in writing by the Traffic Area Office

 

Cases referred to:

 

R Hayes, trading as B&S Tyre & Courier Services (Appeal 17/2001)

A J Curtis t/a Silver Wing Travel (Appeal 12/2001)

 

 

 

 

 

REASONS FOR DECISION:

 

1)     This was an appeal from the decision of the Traffic Commissioner for the North Western Traffic Area made on 30 November 2010 when she revoked the Appellant’s Restricted Goods Vehicles Operating Licence authorising 1 vehicle and 1 trailer, under Section 26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995

 

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

(i)     The Appellant is the holder of a Restricted Goods Vehicles Operating Licence authorising 1 vehicle and 1 trailer.

(ii)    The Traffic Area Office wrote to the Appellant company on 23 December 2009 following receipt of information that the company was not using its operating centre. A blank form GV81 (Request for Major Changes) was sent to the company to use if a change of operating centre was sought. No reply was received and so the Traffic Area Office wrote again on 15 January 2010. Mr Aziz, a Director of the Appellant company then replied, on 20 January 2010, stating that the company was still using its operating centre.

(iii)  On 6 May 2010 the Traffic Area Office wrote to the company again because the Traffic Commissioner had received information that the company no longer had permission to park its authorised vehicle at the nominated operating centre. A further blank GV81 form was sent to assist the company if an application had to be made. No reply was received.

(iv)  The Traffic Area Office wrote again to the Appellant on 21 May 2010 requiring a response by 4 June 2010. The company was warned that if no response was received, the Traffic Commissioner would propose to revoke the operator’s licence. No reply was received.

(v)   On 26 October 2010 the Office of the Traffic Commissioner wrote to the Appellant proposing to revoke the operator’s licence and offering the company the chance to request a public inquiry. A deadline of 16 November 2010 was given for the making of any such request. No reply was received.

(vi)  On 30 November 2010 the Traffic Commissioner decided to revoke the licence on the grounds that there had been a material change in circumstances, the operator had repeatedly failed to communicate with the Traffic Commissioner or respond to enquiries made in writing and posted to various addresses by Recorded Delivery, and the operator no longer appeared to have a viable operating centre.

 

3)     At the hearing of this appeal, the Appellants were represented by Mr Aziz. His principal point was that his business involved driving his vehicle to Iraq, and there was no-one in the UK able to handle his business correspondence properly. He could be away for periods of a month at a time and he did not need an office in the UK during his absence. In his grounds of appeal, Mr Aziz wrote: “unknown to me, the people at the operating centre ignored all the letters you have sent”.

 

4)     In a case called R Hayes, trading as B&S Tyre & Courier Services (Appeal 17/2001) the Transport Tribunal said:

 

The issue that must be resolved in this case is whether the Traffic Commissioner’s decision was “plainly wrong”?  We have considered the history of this matter with considerable care and we are satisfied that the Traffic Commissioner took all reasonable steps to correspond with the Appellant and that in the face of a complete failure upon the part of the Appellant to reply to the correspondence, the Traffic Commissioner was left with no option but to revoke the licence. We repeat the Tribunal’s comments made in A J Curtis t/a Silver Wing Travel (Appeal 12/2001):

 

“This case demonstrates, once again, how important it is for operators to reply to correspondence from Traffic Commissioners.  If they fail to do so and if they fail to take advantage of the opportunity of requiring a Public Inquiry, with the result that their operator’s licence is revoked, it is highly unlikely that an appeal to the tribunal will succeed.  An operator in this situation who wishes to remain in business would be well advised to make an application for a fresh licence.  That course has the great advantage of enabling the Traffic Commissioner to make an up to date assessment of whether the operator meets the statutory requirements.  It also enables the operator to put the full picture before the Traffic Commissioner free from the statutory constraint that prohibits the Tribunal from taking into account “any circumstances which did not exist at the time of the determination the subject of the appeal”. 

 

5)     Since then, a succession of cases have all reinforced the same point. The Traffic Commissioner will generally try to accommodate unusual businesses that require an understanding and flexible approach from the regulator, but communication is essential, and it is for the operator to keep the Traffic Commissioner informed of developments, and to make certain that arrangements are in place to ensure that the requirements of the law and the licensing system are fully complied with, and that all official correspondence is received, read and dealt with properly and promptly.

 

6)     It is also to be observed that, following the letters of May 2010, nothing was heard from the Appellant, and the proposal to revoke was not made until 26 October 2010. Even on the account given by Mr Aziz, he would have been back in the UK on a number of occasions between May and October, but no effort was made to communicate with the Traffic Area Office or with the Office of the Traffic Commissioner.

 

7)     Mr Aziz argued that the Traffic Commissioner should have resorted to email or other forms of correspondence, but we reject this argument. Letters sent by first class post or Recorded Delivery (as these were) is the proper way for important official correspondence of this sort to be sent.

 

8)     As the tribunal stated in A J Curtis, it is open to an operator in this situation to apply for a fresh licence. For this reason, we announced our decision at the hearing, and we suggested that Mr Aziz consider taking professional advice, and to waste no time, should he wish to apply for a new operator’s licence.

 

9)     The appeal is dismissed, and the revocation stands.

 

Judge Mark Hinchliffe, DCP

31 March 2011