Neutral Citation Number: [2011] UKUT 302 (AAC)

Appeal No.  T/2011/31

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Richard Turfitt, Traffic Commissioner for the

Eastern Traffic Area dated 13 April 2011

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

George Inch, Member of the Upper Tribunal

 

 

Appellant:

 

 

BARRY FLOWERDEW trading as AUTO VILLAGE LIMITED

 

 

Attendances:

For the Appellant: In person

 

 

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

Date of hearing: 11 July 2011

Date of decision:  22 July 2011

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be DISMISSED

 

 

 

SUBJECT MATTER:- Restricted licence; failure to apply for a variation to nominate an alternative operating centre; revocation as a result. 

 

 

CASES REFERRED TO:- Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.

 

 

 

 

REASONS FOR DECISION

 

 

1.           This was an appeal from the decision of the Traffic Commissioner for the Eastern Traffic Area made on 13 April 2011 when he revoked the Appellant’s restricted operator’s licence under s.26 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) with immediate effect.

 

2.           The factual background appears from the documents and the decision letter and is as follows:

 

(i)              The Appellant operates as an export agent for the sale of motor cars, principally to overseas military and diplomatic personnel stationed in the United Kingdom and Spain.  The restricted operator’s licence enables the Appellant to operate a two vehicle car transporter for the transportation of vehicles to and from the relevant docks.

(ii)             On 13 April 2010, the Appellant returned a completed licence checklist, along with the fee for a five year continuation of his licence.  In the body of the checklist, the Appellant had deleted the address of the authorised operating centre, namely, The Smoke House Centre, The Street, Beck Row, Bury St. Edmunds, replacing it with the address: Chamberlains Barn, Eriswell, Brandon. 

(iii)            On 6 May 2010, the Central Licensing Office (“CLO”) wrote to the Appellant informing him of the need to apply for a variation to his licence as a result of the change in his operating centre.  An application form was enclosed and the Appellant was required to return the completed application and supporting documentation by 20 May 2010, along with the application fee of £250.  No response was received from the Appellant.

(iv)           On 26 July 2010, the Central Licensing Unit (“CLU”) wrote to the Appellant in the same terms as the letter of 6 May 2010, requiring the Appellant to submit a completed application by 9 August 2010 and advising him that he could apply for an interim licence to continue to operate his vehicle until his variation application had been determined.  The letter warned :

 

“If you fail to comply with this request, regulatory action may be taken against your licence.  You are strongly advised to ensure full compliance with this request within the stated deadline”. 

No response was received from the Appellant.

(v)             On 19 October 2010, Dave Harper of the CLU telephoned the Appellant.  His record of the conversation reads as follows:

“The operator assumed the notification on the checklist was suffice (sic) with regards to notifying this office of a change of O/C.

He will forward the GV81, advert and application fee in the next few days”.

Nothing more was heard from the Appellant.

(vi)           On 21 March 2011, the Office of the Traffic Commissioner (“OTC”) wrote to the Appellant setting out the relevant history.  The letter informed the Appellant that the Traffic Commissioner was concerned that there may have been a change in the Appellant’s circumstances and required him to produce evidence of financial standing by 11 April 2011.  It further warned of the grounds upon which the Traffic Commissioner may consider taking regulatory action against the Appellant’s licence including the unauthorised use of an operating centre.  Representations and/or a request for a public inquiry were sought by 11 April 2011.  The Appellant was warned that his licence may be revoked.  No response was received from the Appellant.

(vii)          On 13 April 2011, the Appellant’s licence was revoked under ss.26(1)(a), (e) and (h) of the Act.

(viii)         On 14 April 2011, the Appellant emailed Carol Daynes of the OTC.  He stated that the OTC had been informed, prior to the issuing of the fee and checklist forms, that the Appellant’s business was relocating.  He confirmed the position when he completed the forms for the five yearly renewal of his licence, which he returned with a cheque that had been cashed.  He “put his hands up” to not advertising the new operating centre in the local newspaper but he had now arranged for that to be done.  He was returning to Spain the following week.  The vehicle was used on average twice a month and he had been required to spend a lot of time in Spain due to a road traffic accident suffered by his Spanish Manager.  The Appellant apologised for his lapse in dealing with the variation and hoped that time could be extended for a variation application to be made.  The truck whilst not used often, was “very handy”.  A completed variation form was attached to the email.

(ix)           In response, the Appellant was advised that he no longer had authority to operate a vehicle and that he had two options: apply for a new licence or appeal to Upper Tribunal.  The Appellant, requested advice as to which option would best “recover the situation” but either way, it seemed “such a lot of work when all we have done is simply move 2 miles down the road to a new office and we only use the truck a couple of times a week”.  The Appellant was advised that the best option would be to apply for a new licence and request an interim authorisation so that he could continue to operate his vehicle.  The Appellant chose to appeal to the Upper Tribunal.

3.           At the hearing of this appeal, the Appellant told the Tribunal that when he relocated to his present address, in the middle of the countryside and two miles away from the previous operating centre, he had written informing the Traffic Commissioner of the change of address and the licence checklist had been sent to that address by the OTC.  He accepted that the letter notifying the change of address may not have stated that the operating centre was relocating along with the correspondence or business address.  In any event, he had made the position clear shortly afterwards when he completed the licence renewal checklist.  At the time that the correspondence commenced concerning the need for a variation application, the Appellant was in the process of converting Chamberlains Barn and he volunteered to the Tribunal that he did not consider the correspondence to be of any importance.  Then he received the telephone call on 19 October 2010 which, the Appellant described as the OTC “now getting all official” with him.  He denied that he had been advised to submit an application in that conversation.  Having said that, he also accepted that he had failed to deal with the issue at that stage because it was at that point that his manager in Spain had suffered a road traffic accident.  The Appellant accepted that he was “totally at fault” in failing to submit an application prior to travelling to Spain.  It was upon his return, that he discovered that the licence had been revoked. When he contacted the OTC (the day after the revocation) and apologised for not submitting an application, he had been informed that it was too late.  He had the advertisement ready and it was wrong that he had been denied the opportunity to rectify the problem, particularly as a new licence application cost, he thought, £3,000 which was disproportionate to his failures as a licence holder (the fee is in fact £250 plus £66 for an interim application).  He had already paid for a licence once and had paid the five yearly renewal fee.  He had since advertised the change in operating centre and had applied for a licence variation but had been told that he was “too late”. He apologised for his inaction but continued to maintain that he felt he had paid for his licence and that he had not been given proper advice upon the matter.

4.           We explained to the Appellant that in our view, the OTC had done more than enough to put him on notice of the requirement to submit a licence variation application as a result of the change in his operating centre and that whilst he was of the view that there would be no objections to his use of Chamberlains Barn as an operating centre as a result of the absence of neighbours in the vicinity of the property, he was nevertheless required to comply with the regulatory regime.  It was neither wrong nor disproportionate to revoke his licence against the background of persistent attempts by the OTC to encourage the Appellant to make a variation application.  He was appropriately advised and a great deal of patience was exercised in his case, no doubt because the Appellant was not a professional haulier.  A line had to be drawn at some stage and to draw it just short of one year from the first notification that a variation application was required cannot be criticised.  We do not know how the Appellant came to believe that a fresh application for a licence would incur fees of £3,000 but that belief was misconceived.  He failed to demonstrate any pro-activity in relation to his licence and we cannot be satisfied that on objective grounds, that a different view of the Appellant’s case from that taken by the Traffic Commissioner was the right one or in other words, that reason and law impelled us to take a different view (as per the test enunciated by the Court of Appeal in the case of Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.  In those circumstances, we advised the Appellant that he should submit an application for a new licence as soon as possible. 

5.           In the result, the appeal is dismissed.

 

 

 

 

 

Her Honour Judge J Beech

22 July 2011