Neutral Citation Number: [2012] UKUT 345 (AAC) Appeal No.  T/2012/29

 

IN  THE  UPPER  TRIBUNAL

ADMINISTRATIVE  APPEALS  CHAMBER

TRAFFIC  COMMISSIONER  APPEALS

 

 

ON  APPEAL FROM  THE  DECISION  OF  KEVIN  ROONEY

TRAFFIC  COMMISSIONER  for the  NORTH  EASTERN  TRAFFIC  AREA

Dated:  30 April 2012

 

 

Before:

Judge Alan Gamble, Judge of the Upper Tribunal,

Leslie Milliken, Member of the Upper Tribunal,

Patricia Steel, Member of the Upper Tribunal

 

Appellant:

 

M  E KINSLEY t/a DIAMOND FITZGERALD TRAVEL

 

 

Attendances:

For the Appellant: Mr P F V Carless, S P C Transport Consultancy Service

 

 

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

Date of hearing: 3 September 2012

Date of decision: 2 October 2012

 

 

DECISION OF THE UPPER TRIBUNAL

 

 

The appeal is dismissed.

 

 

SUBJECT MATTER:- Notice to operators of decisions and proposed decisions of Traffic Commissioners

 

 

 

 

 

 

 

CASE  REFERRED  TO:  Goodman Hichens plc ([2012] UKUT 198/AAC)

 

 

REASONS FOR DECISION

 

 

1. This is an appeal by M E Kinsley trading as Diamond Fitzgerald Travel, the operator, against the decision of the Traffic Commissioner for the North Eastern Traffic area dated 30 April 2012 by which he revoked the operator’s Standard National Public Service Vehicle Licence.  That decision was taken without the convening of a Public Inquiry.

 

2. The Traffic Commissioner has granted a stay of his decision.

 

3. The operator was not personally present at the hearing. He was represented by Mr P. F. V. Carless, Transport Consultant of S. P. C. Transport Consultancy Service. 

 

4. The factual background to this appeal appears from the documents on file.  It is as follows:

 

(a) The operator’s correspondence address and the address of his operating centre were the same at the start of his licence on 28 August 2008.

 

(b) The operator changed his operating centre in November  2011.

 

(c) VOSA were aware of the change of address.

 

(d) No notification of the operator’s change of correspondence address was received by the Traffic Commissioner’s Office.  The operator asserts that he did inform that Office of the above change of address by letter.  No copy of any such letter from the operator has been produced in these proceedings.

 

(e) On 27 October 2011 an anonymous letter was received by the Traffic Commissioner’s Office,  raising questions on the operator’s financial standing.

(f) On 29 November 2011, following the receipt of the above letter by the Traffic Commissioner’s Office, they wrote to the operator at the correspondence address held by them requiring that he produce to them original bank statements covering 20 August 2011 to 20 November 2011.  They requested that those statements be provided by 14 December 2011 at the latest.  No reply to that letter from the operator was ever received by the Traffic Commissioner’s Office. 

 

(g) Accordingly on 27 January 2012 a further letter to exactly the same effect as that of 29 November 2011 was sent to the operator, to the same address, by the Traffic Commissioner’s Office.  Once more there was no reply from the operator. 

 

 

 

 

 

(h) On 21 March 2012 the Traffic Commissioner’s Office, in view of the lack of response to the above letters, sent a further letter to the operator at the correspondence address held by them indicating that the Traffic Commissioner was minded to revoke his licence.  The ground on which the Traffic Commissioner proposed to do so was that laid out in section 17(1)(a) of the Public Passenger Vehicles Act 1981, the license holder no longer being of sufficient financial standing.  In the above letter the Traffic Commissioner’s Office explained to the operator his right to request a Public Inquiry.  No reply to the above letter was forthcoming from him. 

 

(i) In these circumstances the Traffic Commissioner revoked the operator’s licence on 30 April 2012.  A letter intimating that decision was sent by recorded delivery to the same address used on all previous occasions for correspondence from the Traffic Commissioner’s Office.  The operator states that he became aware of the Traffic Commissioner’s decision through a third party drawing to his attention the Notice of the Revocation of his Operator’s Licence which was published in “Notices and Proceedings”. 

 

 

5. Mr Carless submitted that in all the circumstances we should set aside the Traffic Commissioner’s decision and remit the case for a determination of the merits of the operator’s financial standing after a Public Inquiry.  He emphasised that the operator had no problem with such an inquiry being held on that matter.  He stressed that the Traffic Commissioner had granted a stay of his own decision.  He also laid emphasis on the fact that the proceedings had originated in an anonymous letter.  In addition, he stressed that there was at least some question about whether the Traffic Commissioner’s Office had received notification from the Operator of the change of his correspondence address.  At least, Mr Carless reminded us, there was evidence VOSA had received a letter regarding the relevant change of address.  That took the form of a letter from Traffic Examiner Ann Devlin which was addressed by her to the new address of the operator’s operating centre.  That letter was dated 21 November 2011 and was produced by the operator and Mr Carless in a conversation with a member of staff in the Traffic Commissioner’s Office on 30 May 2012 as recorded on document 11.  Mr Carless’ principal legal submission was that it was disproportionate that the operator’s licence should have been revoked without a Public Local Inquiry.  Because of that the operator had had no opportunity to put his case on the substantive issue of the sufficiency of his financial standing to the Traffic Commissioner.  In that regard, he referred us to the decision of the Upper Tribunal in Goodman Hichens plc [2012] UKUT 198 (AAC), paragraph 8.  Mr Carless accepted that his reference to that authority was by way of analogy.  The case in question had related to notice of a Public Inquiry rather than to notice of a Traffic Commissioner being minded to reach a decision or indeed notice of that decision itself.  In paragraph 8 the Upper Tribunal expressed themselves thus:

 

 

 

 

 

 

 

 

“(8) Nevertheless, the fact remains that the directors have not yet had a real and genuine opportunity to put their case to a Traffic Commissioner.  We are of the view that paragraph 6(1) uses the word “may” for a reason, it is not exhaustive and it does not remove the obligation on the Traffic Commissioner to strive for fairness in the exercise of his judicial functions.  To paraphrase the tribunal in Solent Travel, we can see that there might be an argument to the effect that, where possible, nothing less than a genuine and real endeavour to give effective notice of the time and place of the proceedings is likely to be appropriate and proportionate when there is a potential loss of livelihood and reputation arising from a disqualification.”

 

6. We are not persuaded by the arguments advanced  by Mr Carless.  We are not satisfied on balance of probabilities that the operator did inform the Traffic Commissioner’s Office of his change of correspondence address.  His bare assertion to that effect is the only evidence that he did so.  We lay emphasis on the fact that no copy of any letter from the operator informing the Traffic Commissioner’s Office of his change of correspondence address was produced in these proceedings.  Further, it was the statutory duty of the operator to notify his change of correspondence address to the Traffic Commissioner’s Office by virtue of regulation 25 of the Goods Vehicles (Licensing of Operators) Regulations 1995.  That regulation provides as follows:

 

“Notification of change of address

 

25. If during the currency of a licence the address for correspondence as notified in the licence holder’s application or as subsequently notified under this regulation ceases to be an effective address for correspondence the licence holder shall within twenty eight days from the date of such event notify the Traffic Commissioner by whom the licence was granted of an effective address for correspondence”

 

We do not consider that the analogy which Mr Carless sought to draw with the decision in Goodman Hichens plc is compelling.  As Mr Carless himself conceded that case related to Notice of a Public Inquiry and not to Notice of a Traffic Commissioner being minded to reach a decision or indeed of that decision itself.  Further paragraphs 9 and 10 of that decision make it clear that the situation in regard to the Traffic Commissioner’s knowledge of the operator’s address was very different in that case from this one.  We fully accept that the revocation of the operator’s licence with its effects on his livelihood  is a very serious matter for the operator.  We also accept that these proceedings commenced with an anonymous letter.  Nonetheless the proceedings took the course they did because of the operator’s breach of his statutory duty to inform the Traffic Commissioner’s Office of the change of his correspondence address.  In these circumstances we cannot say that the Traffic Commissioner’s decision was plainly wrong.  Indeed in our view it was both correct and proportionate.  We uphold it. 

 

7. The operator’s appeal is dismissed.

A J GAMBLE

Judge of the Upper Tribunal

Date: 2 October 2012