(TRAFFIC COMMISSIONER APPEALS)
ON APPEAL FROM THE DECISION OF SARAH BELL,
TRAFFIC COMMISSIONER for the WESTERN TRAFFIC AREA,
DATED 24 APRIL 2012
Before:
Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.
David Yeomans, Member of the Upper Tribunal.
George Inch, Member of the Upper Tribunal.
Appellant:
RUSSET RED LIMITED
Attendance:
For the Appellant: No attendance on behalf of the Appellant
Date of decision: 14 August 2012
DECISION OF THE UPPER TRIBUNAL:
Subject Matter:
Sustained non-compliance; disqualification following revocation of an interim licence.
Cases referred to:
David Finch t/a David Finch Haulage [2010] UKUT 284 (AAC).
REASONS FOR DECISION:
1) This was an appeal from the decision of the Traffic Commissioner for the Western Traffic Area made on 24 April 2012 when she refused the appellant’s application for a standard national operator’s licence authorising 20 vehicles and 20 trailers, revoked the appellant’s interim licence, and disqualified the appellant company and it’s Director, Christopher McCann from holding an operator’s licence or being involved in any entity that holds an operator’s licence, in Great Britain, for a period of 5 years.
2) The factual background to this appeal appears from the documents, the transcript and the Traffic Commissioner’s decision and is as follows:
(i) The Appellant is the holder of an interim standard national operator’s licence authorising 12 vehicles and 10 trailers. This licence was granted on 13 March 2011, just two days after a previous operator’s licence held by the appellant was revoked following a public inquiry.
(ii) The Traffic Commissioner decided that a number of matters needed to be considered before she could consider granting a full licence, including financial standing. A VOSA investigation also took place into the running of the interim licence, and a check was made as to convictions because, in the application form for a new licence (dated 19-1-2011), the appellant undertook to notify the Traffic Commissioner of any convictions against the company or it’s directors or employees. The company’s sole director, Mr C.D. McCann, had signed the form.
(iii) In the light of further information received as to (amongst other things) ongoing drivers’ hours offences, non-disclosure of convictions, lack of professional competence at all times and unauthorised use of vehicles - and in view of the appellant’s failure to provide evidence of satisfactory financial standing - the Traffic Commissioner notified the operator that she was minded to refuse the application. The operator requested a public inquiry.
(iv) In addition, links between Mr McCann and a man called Mr S. Standen emerged. Mr Standen was disqualified from being a director throughout the period relevant to the current interim licence and the appellant’s previous full licence. The links between Mr Standen and the appellant were discussed at the previous public inquiry that led to the revocation of the previous operator’s licence and Mr McCann had, at that time, assured the Traffic Commissioner that Mr Standen was a legitimate customer of the appellant and that the appellant would soon enter into a new commercial arrangement that would exclude Mr Standen from any involvement in the appellant’s transactions. However, evidence from VOSA strongly suggested that Mr Standen remained involved in the appellant’s transport operations and that the appellant company was being used as a ‘front’ for Mr Standen.
(v) At the public inquiry, the Traffic Commissioner became concerned at the very poor quality of the appellant’s representation. She formed the view that the transport consultant appearing for the operator and Mr McCann lacked a proper appreciation of the gravity and seriousness of the matters arising. Accordingly she adjourned the public inquiry so that Mr McCann could make alternative arrangements, should he so choose to do so.
(vi) The public inquiry resumed on 26 March 2012 but neither Mr McCann, nor a representative, attended at the resumed hearing. Instead, Mr McCann sent in a handwritten note requesting an adjournment because he said he had a hospital appointment, but he did not submit a letter or medical certificate from his G.P. and there was no evidence that he was unfit to attend the hearing. The Traffic Commissioner, quite rightly in view of the history and seriousness of the matters to be considered, refused the request. Following his failure to attend or be represented at the resumed public inquiry, the Traffic Commissioner decided to proceed to hear and consider the evidence.
(vii) In a written decision dated 24 April 2012 the Traffic Commissioner found that there had been serious ongoing drivers hours infringements, convictions that had not been notified, the absence of a transport manager over much of the period of the interim licence, and use of vehicles not specified on the licence. She further found that Mr McCann had knowingly allowed Mr Standen to hold himself out as a director of the appellant company and to act as such a director.
(viii) The Traffic Commissioner concluded that she had previously been misled by Mr McCann, that she could not trust him or the company to operate compliantly in the future and that the operator deserved to be put out of business. She found that the application fell to be refused and that the interim licence must be revoked. She further found that Mr McCann's sustained non-compliance, despite a previous revocation and the opportunity of a fresh start being given, warranted a disqualification for a period of 5 years.
(ix) The Notice and Grounds of Appeal to the Upper Tribunal assert that:
· The appellant had provided financial records;
· The appellant had a transport manager but when the transport consultant was removed from the case (on the Traffic Commissioner’s advice), he took the transport manager away;
· The appellant had always complied with the Traffic Commissioner and VOSA.
3) At the hearing of this appeal, the Appellants were not represented, and Mr McCann did not attend. The Notice of Appeal makes it clear that Mr McCann had still not arranged representation. No explanation for the non-attendance was received although we noted from the papers that, on 13 April 2012, the Traffic Commissioner’s Office had received a letter from Mr McCann stating that the appellant had ceased trading on 30 March 2012.
4) The tribunal decided to proceed and consider the grounds of appeal in the light of all the documentary evidence before us.
5) We consider that the Traffic Commissioner was entirely right to conclude, as she did, that the issues to be considered at the public inquiry were sufficiently serious to put revocation and disqualification as serious possibilities, and to give the appellant and Mr McCann an opportunity to arrange competent representation.
6) We have found no evidence of financial standing that would be, or could have been, acceptable to the Traffic Commissioner.
7) Whatever the arrangement between the appellant and the transport consultant in relation to the provision of a transport manager, we consider it established that the appellant had operated for some time without having a transport manager in place exercising continuous and effective control of the transport operation. If anything, the withdrawal of the so-called transport manager following the removal of the transport consultant demonstrates how unwise and unreal such an arrangement was. In our view, it provides no excuse whatsoever for the lack of professional competence as found, quite rightly, by the Traffic Commissioner.
8) The bald assertion that the appellant had always complied with the Traffic Commissioner and VOSA is, quite simply, contradicted by the facts. There had been ongoing abuses of the driver’s hours and tachograph regulations, improper and unauthorised use of unspecified vehicles, and we consider that, on balance, the Traffic Commissioner had been misled in relation to Mr Standen. We also consider that the Traffic Commissioner’s conclusions as to ‘fronting’ were open to her on the evidence.
9) This was a bad case and, in our view, disqualification was more than justified, especially given the apparent failure to learn any lessons from the previous public inquiry and revocation, or to take proper advantage of the opportunities the Traffic Commissioner had offered for Mr McCann to turn over a new leaf.
10) In the absence of the appellant, we considered one unusual feature of the case, namely the imposition of a disqualification following revocation of an interim licence. So far as they are relevant to the facts of this case, Sections 24 and 27 of the Goods Vehicles (Licensing of Operators) Act 1995 provide:
24(1) On an application for an operator's licence (a "full" licence), a traffic commissioner may, if the applicant so requests, issue to him an interim licence.
(2) An interim licence is an operator's licence that (subject to its revocation or other termination under any provision of this Act or any other statutory provision) will continue in force until it terminates under subsection (4), (5) or (6).
(3) The traffic commissioner may issue an interim licence in the same terms as those applied for in relation to the full licence or in terms that differ from those terms in any of the respects mentioned in section 15(3).
(4) ….
28.—(l) Where, under section 26(1) or 27(1), a traffic commissioner directs that an operator's licence be revoked, the commissioner may order the person who was the holder of the licence to be disqualified (either indefinitely or for such period as the commissioner thinks fit) from holding or obtaining an operator's licence; and so long as the disqualification is in force—
(a) any operator's licence held by him at the date of the making of the order (other than the licence revoked) shall be suspended, and
(b) notwithstanding anything in section 13 or 24, no operator's licence may be issued to him.
….
(5) The powers conferred by subsections (1) and (4) in relation to the person who was the holder of a licence shall be exercisable also—
(a) where that person was a company, in relation to any director of that company.
…
It follows that, in an appropriate case, a disqualification of a company and its director(s) can follow on from the revocation of an interim licence under section 26(1) or 27(1). We see no reason why the principles summarised in the case of David Finch t/a David Finch Haulage [2010] UKUT 284 (AAC) should not apply to these cases as they do to other disqualifications. On the other hand, if there is no interim licence, and an application is simply refused, then there cannot be a disqualification.
11) This case, therefore, not only highlights the foolishness of tying-in the provision of a transport manager with a third person’s consultancy services, but also the risk that even a new operator runs of disqualification if they obtain an interim licence which then has to be revoked as a consequence of serious non-compliance, misuse, or dishonest or unlawful behaviour.
12) In our view the appellant and Mr McCann had every opportunity to put their case to the Traffic Commissioner who, in our judgement, was entitled to proceed and to reach the conclusions that she did on the facts properly found. The Traffic Commissioner asked herself the correct questions before exercising her statutory powers, and we find no reason to interfere with her decisions.
13) The appeal is dismissed.
Judge Mark Hinchliffe, DCP
14 August 2012