Neutral Citation Number:  [2012] UKUT 346 (AAC) Appeal No.  T/2012/30

 

IN  THE  UPPER  TRIBUNAL

ADMINISTRATIVE  APPEALS  CHAMBER

TRAFFIC  COMMISSIONER  APPEALS

 

ON  APPEAL  FROM  THE  DECISION  OF  NICK  DENTON

TRAFFIC  COMMISSIONER  for the  SOUTH  EASTERN  and

METROPOLITAN  TRAFFIC  AREA

 

Dated: 21 May 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 G M HAULAGE  &  RECYCLING LTD

 

 

 

Attendances:

For the Appellant Mr M Morgan, Director, appeared on behalf of the Appellant

 

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:-

 

Advertisement of application for Operator’s Licence

 

 

 

 

 

CASES REFERRED TO: None

 

 

REASONS FOR DECISION

 

 

1. This is an appeal by M G M Haulage & Recycling Ltd, the company, against the decision of the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area dated 21 May 2012.  By that decision the Traffic Commissioner refused an application by the company dated 4 April 2012 for a restricted goods vehicle operators licence for two vehicles.  The Traffic Commissioner’s refusal of the company’s application was on the basis of a failure on the part of the company to meet the requirements regarding a valid newspaper advertisement of the application.

 

2. The company was represented by Mr M Morgan, a Director, at the hearing before us.

 

3. The factual background to the appeal appears from the documents on file the Traffic Commissioner’s decision and information supplied orally by Mr Morgan.  It is as follows:

 

(a) The company applied for a restricted operator’s licence for two vehicles on 4 April 2012.

 

(b) The company placed an advertisement relating to the above application in four local newspapers circulating in the area of their proposed operating centre on 30 March 2012.

 

(c) That advertisement is reproduced on file.  It is in small type and takes up only a small part of the relevant page of the newspapers.  It is not headed “Goods Vehicle Operators Licence” at all and it is certainly not headed  with that title in bold type.

 

(d) The company’s proposed operating centre is on farm premises fairly isolated from residential properties.

(e) The newspaper group which publishes the four local newspapers in question accepted that the omission of the title “Goods Vehicle Operators Licence” was their responsibility.  They re-inserted by the advertisement again in small type and taking up only a small part of the relevant page on 1 June 2012, after the Traffic Commissioner’s decision.  In the re-inserted advertisement the heading “Goods Vehicle Operator’s Licence” does appear at the top of the advertisement in question.  The newspaper group provided the re-advertisements free of charge to the company. 

 

(f) A previous application for a licence made by Mr Morgan in respect of another company which is now dissolved was advertised with the heading “Goods Vehicle Operator Licence”. 

 

 

 

 

 

 

4. The reason for the Traffic Commissioner’s decision to refuse the company’s application was the omission of the heading “Goods Vehicle Operator Licence” from the advertisements of 30 March 2012.  The content of those advertisements corresponded to the statutory requirements laid down in section 11 of the Goods Vehicles (Licensing of Operators) Act 1995 read along with regulation 7(2) on the Goods Vehicles (Licensing of Operators) Regulations 1995 and Schedule 1 to those regulations.  Nor is there any dispute that the newspapers in which they appeared were local newspapers circulating in the locality of the company’s proposed operating centre.  Further, we agree with Mr Morgan that the publishers of those newspapers have accepted that the omission of the heading from those advertisements was due to oversight on their part.  Nonetheless we must emphasise that the responsibility to ensure compliance with the detailed and exact requirements for advertisement rested on the company as the applicant for a licence and in practical terms on Mr Morgan as its director.  It is of some importance that when he placed an advertisement in connection with a previous application for a Goods Vehicle Operator licence in respect of a different company which is now dissolved the advertisement in question included the heading “Goods Vehicle Operator’s Licence”.  A copy of that advertisement is reproduced on document 4.  More significantly we hold that Mr Morgan must be taken to be aware of the “Guide for Operators” issued by VOSA.  That Guide deals with advertisements of applications as follows:

 

“DO  I  HAVE  TO  ADVERTISE  MY  APPLICATION?

 

2.3 You must advertise your application in a local newspaper circulating in each place where you are applying to have your operating centres.  This gives anyone owning or occupying buildings or land in the vicinity of the operating centre an opportunity to make a representation against your application on environmental grounds.  See Part 5.

 

2.4 Your GV79 application form contains a blank advertisement form and tells you how to fill it in (a copy is at Appendix 8).  You can choose the size of the advertisement yourself, but it must be big enough to be easily read.  The advertisement must appear  at least once within the period running from 21 days before to 21 days after  you make your application.  Tear out the whole page of the newspaper showing your advertisement and send it straight away to the Traffic Commissioner.  The page sent should contain the date and name of the paper.  This will enable the caseworker dealing with your application to check that you have advertised correctly.  If when your advertisement appears you have not yet sent in your application form, you should do so without delay.

 

2.5 If you do not advertise your application properly, or within the correct period, the Traffic Commissioner may not be able to consider your application.  You should check also that the total number of vehicles and trailers you have applied to be authorised to use in your advertisement.  In addition to your advertisement, the Traffic Commissioner will publish details of your application in a publication called “Applications and Decisions”.  This is sent to various organisations including Local Authorities, Police and Trade Associations who have a statutory right to object to the grant of your application.”

 

 

Paragraph 2.4 quoted above points applicants to appendix 8 of the Guide.  Appendix 8 lays out an “advertisement form”.  That form includes the heading “Goods Vehicle Operators Licence”.  Given that the advertisements of 30 March 2012 did not comply with Appendix 8 in respect that they omitted the required heading we cannot say that the Traffic Commissioner’s decision was plainly wrong.  The purpose of including the heading is to facilitate the overall purpose of the statutory requirements of an advertisement of an application for a Goods Vehicle Operators Licence. That overall purpose is laid out in paragraph 2.3 of the Guide for Operators cited above.  Given the purpose of the heading which is stipulated in Appendix 8 its omission is therefore a matter of importance.  The Traffic Commissioner did not err in law by treating it as such in his decision.

 

5. The appeal is dismissed.  Mr Morgan should be aware that this decision does not preclude him from submitting a fresh application for a licence on behalf of the company.

 

 

 

A J GAMBLE

Judge of the Upper Tribunal

Date: 2 October 2012