Neutral Citation Number: [2011] UKUT 303 (AAC)

Appeal No.  T/2011/32

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Beverly Bell, Traffic Commissioner for the

North Western 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:

 

 

MICHAEL WELSH LIMITED

 

 

Attendances:

For the Appellant: No appearance but a request for determination of the appeal in its absence.

 

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 pay fees on time; automatic 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 North Western Traffic Area made on 13 April 2011 when she refused to find exceptional circumstances for the late payment of licence fees under s.45(4) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).

 

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

 

(i)              The Appellant is a construction company which was granted a restricted operator’s licence in 2006 authorising three vehicles with one in possession.  The vehicle was used for the transportation of machinery and equipment to various construction sites.

(ii)             On 18 January 2011, the Office of the Traffic Commissioner (“OTC”) sent to the Appellant’s correspondence address, 624 Edenfield Road, Rochdale, the fee and checklist documentation to enable the Appellant to renew its licence.  The fee was to be paid by 28 February 2011.  No response was received from the Appellant. 

(iii)            On 9 March 2011, a further letter was sent to the Appellant informing of the automatic termination of its licence as a result of non-payment of the renewal fee. 

(iv)           On 17 March 2011, Mr Welsh, director of the Appellant company, wrote to the OTC, stating that it was with “sad regret” that due to the incompetence of “the forwarding address department”, the letter of 18 January 2011 had been overlooked.  This failure was as a result of “mismanagement” and was “clearly an oversight”.  The relevant person had been reprimanded and the vehicle taken off the road.  All correspondence should be sent to the “new address” of Newlaithe Farm, Longcauseway, Risworth including correspondence relating to the granting of a new licence. 

(v)             On 7 April 2011, Mr Welsh’s letter was considered by a member of staff in the OTC and a company check was undertaken with Companies House.  This revealed that the Appellant had changed its correspondence address from 624 Edenfield Road to Newlaithe Farm on 7 September 2007.  In the circumstances, on 13 April 2011, the Traffic Commissioner determined that there were no exceptional circumstances for allowing the late payment of the licence fee in order for the Appellant’s licence to continue. 

(vi)           The Appellant appealed to this Tribunal.  In the grounds of appeal drafted by Mr Welsh, he stated that the company’s vehicle was important to its work.  He had realised that as a Director of the company, he had made a mistake in failing to notify the Traffic Commissioner of the company’s change of address, for which he took full responsibility.  The company had “never been in trouble”; it paid its bills, taxes, including VAT on time and he himself was a law abiding citizen.  He wished to be given “one last chance” being extremely upset about what had taken place.  It had been a difficult year for the company but it had pulled through and the operator’s licence was necessary in order to continue to operate the business. 

(vii)          On 17 May 2011, in the light of the Appellant’s grounds of appeal, the Traffic Commissioner reviewed her decision.  She nevertheless found that they did not reveal any exceptional grounds for the failure of the Appellant to pay its licence renewal fees within time and determined that her decision should stand.

3.           Prior to the hearing of this appeal, Mr Welsh apologised for his non-attendance and requested that the Tribunal determine the appeal in his absence, which we agreed to do.  We too find that there are no exceptional grounds for the Appellant failing to pay its licence renewal fees within time.  The company had changed its correspondence address in September 2007 without notifying the Traffic Commissioner.  The onus was on the Appellant to ensure that the Traffic Commissioner was informed of the up to date position in relation to both the correspondence address and operating centre.  The Appellant failed to discharge that onus.  In the circumstances, we cannot find that reason and law impelled us to take a different view from that of the Traffic Commissioner in relation to her findings that there were no exceptional circumstances for the non-payment of fees in this case (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.  The Appellant must now apply for a new licence.

4.           In the result, the appeal is dismissed.

 

 

 

 

 

Her Honour Judge J Beech

22 July 2011