Neutral Citation Number: [2012] UKUT 406 (AAC) Appeal No: T/2012/45

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF NICK DENTON, TRAFFIC COMMISSIONER

for the SOUTH EASTERN & METROPOLITAN TRAFFIC AREA,

DATED 25 July 2012

 

Before:

Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.

David Yeomans, Member of the Upper Tribunal.

Stuart James, Member of the Upper Tribunal.

 

 

Appellant:

GOODS 2 GO LTD

 

 

Attendance:

For the Appellant: Mr D Rundle, Counsel.

 

Appeal heard at: Victory House, Kingsway, London

Date of hearing: 17 October 2012

Date of decision: 7 November 2012

 

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be allowed. The matter is remitted back to the Traffic Commissioner to consider all outstanding matters at public inquiry.

 

 

Subject matter:

Two ‘Propose to revoke’ letters sent – one from the Traffic Commissioner’s Eastbourne Office, and one from the Traffic Commissioner’s Central Licensing Office (EU Regulations) in Leeds. The letters covered similar matters but gave different deadlines for representations to be made. The decision to revoke was made before the second deadline had expired. Written representations were made before the second deadline expired, but these were not considered, the licence having been revoked after the first deadline.

 

Cases referred to:

None

 

 

 

 

 

REASONS FOR DECISION:

 

1)     This was an appeal from the decision of the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area made on 25 July 2012 when he revoked the operator’s standard (international) goods vehicles operators licence under section 26(1)(b), (f), (h) and 27(1)(a) and(b)of the of the Goods Vehicles (Licensing of Operators) Act 1995.

 

2)     The factual background to this appeal appears from the documents and the Traffic Commissioner’s decision and is as follows:

(i)     The appellant is the holder of a standard (international) operator’s licence issued on 25 May 2005 authorising 3 vehicles and 3 trailers from an operating centre at TNT Bermondsey, London, and 9 vehicles and 5 trailers at Unit 2-3, Mitcham Industrial Estate, Mitcham.

(ii)    The Traffic Commissioner received information from a Vehicle Examiner that he had been unable to contact the operator at the operating centre located at the Mitcham industrial estate. Enquiries at the site apparently revealed that the company was no longer trading from this operating centre. A check of Companies’ House also revealed that a change of directors had taken place, apparently without notifying the Traffic Commissioner’s office. The Central Licensing Office in Leeds told the Traffic Commissioner’s Office in Eastbourne that they had advised the company to make a variation application to specify a new operating centre, but despite their advice, no variation application had been received

(iii)  Consequently, by letter dated 3 July 2012, the Office of the Traffic Commissioner in Eastbourne wrote to the operator at its correspondence address indicating that the Traffic Commissioner was considering taking action on the grounds that the company appeared to be using an unauthorised place as an operating centre, had failed to notify the Traffic Commissioner of changes affecting the licence, VOSA been unable to access maintenance records, there had been a material change in circumstances, and the company may not be of appropriate financial standing. The operator was invited to make representations or request a public inquiry by 24 July 2012.

(iv)  On 23 July 2012 the Traffic Commissioner’s Office in Eastbourne received a letter from Mr Gerald Douglas, director, indicating that although the operator would no longer be operating from the Mitcham industrial estate, it would still be operating from TNT Bermondsey. Mr Douglas also stated that he had spoken to a person at the Central Licensing Office in Leeds to advise on the position in relation to the operating centres and of the change of directors.

(v)   Meanwhile, the Office of the Traffic Commissioner in Leeds (EU Regulations), by letter dated 16 July 2012, wrote to the operator stating that the Traffic Commissioner was considering taking action on the grounds that the operator had either ceased operating or changed address without advising the Traffic Commissioner, and because it appeared that the operator had failed, amongst other things, to satisfy the requirement to have an effective and stable establishment in Great Britain. This letter indicated that the Traffic Commissioner was willing to give the operator a final opportunity to provide full details of information and return it by 6 August 2012. The letter said: “if no response to this letter is received by 6 August 2012, the operator’s licence will be revoked.”

(vi)  On 31 July 2012 a traffic consultant employed by the operator emailed Ms Vine of the Traffic Commissioner’s office in Eastbourne (the tribunal noted that Ms Vine’s email address is still a “VOSA” email address) stating that Mr Douglas had spoken to a person in the Leeds office sometime during 2010 when the licence was renewed advising of the changes to the operating centres and to the directors, and also addressing matters in relation to a new transport manager. There is a note on this email indicating that, in fact, the Traffic Commissioner (who had not been advised of the letter dated 16 July 2012) had revoked the licence on 25 July 2012.

 

3)     At the hearing of this appeal, the Appellants were represented by Mr Rundle, of counsel, who submitted a chronology and a statement from Mr Gerald Douglas, for which we were grateful.

 

4)     Mr Rundle made a number of points, most of which depended upon the tribunal accepting Mr Douglas’s assertion that he had contacted the Leeds office in 2010. The chronology provided suggested that this had occurred on 21 May 2010, but that transpired to be a mistake on the part of the appellant’s representatives who had misread a file note that, in fact, referred to 21 May 2012. The tribunal was not persuaded that there was any direct or circumstantial evidence proving that contact had been made in 2010 although we noted that the letter dated 3 July 2012 said that the Central Licensing Office in Leeds had (at some unspecified time) requested that the company make a variation application, although no such application had been made. We also noted that a check of records at the Central Licensing Office in Leeds showed no record of contact in 2010.

 

5)     Despite these areas of uncertainty and inconsistency, the tribunal is satisfied that, through no fault of the Traffic Commissioner, the decision to revoke had been taken in circumstances that could give rise to a perception of unfairness. This is because, although the letter from Eastbourne dated 3 July 2012 gave 24 July 2012 as a deadline, the second letter from Leeds dated 16 July 2012, referring to much the same concerns in relation to changing address and maintaining an effective and stable establishment, gave a second deadline of 6 August 2012. The operator might reasonably have assumed that the deadline had been extended and it is clear that, before the second deadline expired, a lengthy email was sent to the Traffic Commissioner’s office in Eastbourne, which could not be considered because the operator’s licence had already been revoked.

 

6)     There are a number of matters that now require to be addressed. We do not think that the decision to revoke on the basis of the letter dated 3 July 2012 can stand. This means that all the matters referred to in that letter together with any additional matters referred to in the letter dated 16 July 2012 still require a decision from the Traffic Commissioner. In all the circumstance it seems to us that the totality of the issues arising, including the self-evident fact that this operator clearly wishes to continue to operate if permitted to do so, militates towards resolution at a public inquiry rather than in chambers.

 

7)     The tribunal therefore allows the appeal and remits the matter back to the Traffic Commissioner for him to consider all outstanding issues (including any variation applications) at public inquiry.

 

 

Judge Mark Hinchliffe, DCP

7 November 2012