(TRAFFIC COMMISSIONER APPEALS)
ON APPEAL FROM THE DECISION OF SARAH BELL,
DEPUTY TRAFFIC COMMISSIONER for the EASTERN TRAFFIC AREA,
DATED 23 AUGUST 2012
Before:
Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.
Stuart James, Member of the Upper Tribunal.
John Robinson, Member of the Upper Tribunal.
Appellant:
SPEEDCRETE CP LTD
Attendance:
For the Appellant: Mr P Dod (Director)
For the Representors: Mr & Mrs Ngantu
Date of decision: 4 December 2012
DECISION OF THE UPPER TRIBUNAL:
Subject matter:
Public inquiry into suitability of proposed operating centre. Relevant matters.
Cases referred to:
Surrey County Council v Paul Williams [2003] EWCA Civ 599
David Holloway 2004/202
41/2001 Tate Fuel Oils Ltd
REASONS FOR DECISION:
1) This was an appeal from the decision of the Deputy Traffic Commissioner for the Eastern Traffic Area made on 23 August 2012 when she refused the application by the Appellant operator to operate 2 vehicles from Unit One, 70 Station Road, Terrington, St Clement, Kings Lynn (”Unit One”) under Section 13(2) and 13(C)(5) of the Goods Vehicles (Licensing of Operators) Act 1995.
2) The factual background to this appeal appears from the documents, the transcript and the Deputy Traffic Commissioner’s decision and is as follows:
(i) The Appellant is the holder of a restricted goods vehicle operator’s licence authorising two vehicles. Deputy Traffic Commissioner Dorrington granted the licence on 17 November 2010 following an application made in May 2010. The delay in granting the application arose because the operator’s proposal to base two vehicles at “Unit One” met with resistance from the owners of a house at “The Willows”, 70 Station Road – on road safety and environmental grounds. The access road to the proposed operating centre passes very close to “The Willows” separating the house from its garden. Deputy Traffic Commissioner Dorrington did not undertake a site visit, but - following extensive attempts by the Traffic Commissioner’s Office staff to find a solution - he did impose a number of conditions on the licence, which the operator accepted. There was no public inquiry.
(ii) Mr and Mrs Ngantu had been regarded as valid representors and as persons with an interest in the Deputy Traffic Commissioner’s decision. When they learned that he had granted the application (albeit with conditions), they asked him to review his decision under Section 36 of the Act. The Deputy Traffic Commissioner concluded that every procedural requirement imposed by under the Act had been complied with and that, therefore, there was no power to review his decision.
(iii) Mr and Mrs Ngantu appealed against the Deputy Traffic Commissioner’s refusal to review his decision, and the appeal was heard by the Upper Tribunal (Judge F Burton and two colleagues) on 20 April 2011.
(iv) Mr and Mrs Ngantu attended at the 2011 hearing before the Upper Tribunal although there is no reference on the face of the tribunal’s decision, dated 20 May 2011, to the position of the operator, which did not attend and was not represented at the hearing.
(v) After summarising the background and submissions, the tribunal expressed ‘concern’ at the manner in which the case had been handled, commenting on the weight that the tribunal thought that the Traffic Commissioner’s Office had given to various allegations made either by the operator against the present owners, or vice versa. The tribunal concluded that the site had not been thoroughly investigated and that the representors’ “valid concerns” had not been taken seriously. Although no particular mandatory statutory requirement was identified to trigger the review power under S.36, the tribunal considered that the substantive case should be re-considered by a different Traffic Commissioner or Deputy Traffic Commissioner who, said the tribunal, should make a site visit and take account of all “legitimate” evidence, if necessary at a public inquiry.
(vi) Thus the matter came before Miss Bell, sitting as Deputy Traffic Commissioner for the Eastern Traffic Area. She personally visited the proposed operating centre immediately before convening the public inquiry at the Kings Lynn Town Hall on 16 July 2012.
(vii) The hearing lasted nearly 3 hours and the Traffic Commissioner received evidence from two Traffic Examiners, Mr Dod (Director of the operator) and Mr and Mrs Ngantu, the representors. Her written decision is dated 23 August 2012 and, after correctly summarising the law, she turned her attention to matters of relevance, and to her findings and conclusions with reasons.
(viii) The Deputy Traffic Commissioner decided that the extent of the operator’s right-of-way was not for her to determine and it was not for her to become distracted by property disputes. The operator presented court documents to demonstrate that, prime facie, it did have a right-of-way and she proceeded upon the basis that it had a right-of-way for commercial vehicles. Next, she found that it was beyond her jurisdiction to require that the operator created a new access route or entrance from the public road. Next, she found that questions of planning permission fell outside her jurisdiction. She declined to get drawn into the history of the right of way, or the dispute, and focussed on safety and noise.
(ix) The Deputy Traffic Commissioner accepted that road safety considerations in relation to the access route (from the proposed operating centre up to the point that vehicles first join the public road) and environmental matters, fell within her jurisdiction. In relation to environmental nuisance, the Deputy Traffic Commissioner took this as an all-encompassing heading to include noise of authorised vehicles and noise created by the opening and closing of gates and shutters.
(x) In relation to noise, the Deputy Traffic Commissioner accepted evidence that the ambient noise from the A17 road nearby meant that any noise created by a vehicle approaching “The Willows” was not discernible. Although this meant that any environmental intrusion was limited because the noise of approaching vehicles blended into the background noise from the highway, it created a safety hazard. Any approach to “The Willows” by a commercial vehicle was not discernible, and so there was no material warning of approaching goods vehicles into the access drive to those present within the immediate vicinity of “The Willows”. In addition, the hedging and the overhang of trees blocked visibility when driving into the entrance of the access road.
(xi) The Deputy Traffic Commissioner concluded from the evidence that she had heard, and from her own observations, that residents and visitors (and their animals) at “The Willows” would be at risk of having no prior warning of the approach by the operator’s authorised vehicles. In addition, drivers of commercial vehicles had two impediments to a clear view, namely overhanging branches and Leylandii hedging, which created a ‘blind spot’ and would impede the driver’s ability, in particular, to see children and animals that had the ability to run into the path of any commercial vehicles on the access way through the Leylandii hedging.
(xii) The Deputy Traffic Commissioner then considered whether conditions and/or undertakings could alleviate her concerns, but she found that none were realistic or practical. For example, a requirement that all drivers stopped their vehicles upon entering the access road, and physically knocked on the door of the house in order to warn the occupiers of their intention to drive down the access way, simply created a different type of interference with the enjoyment of land by residents occupying the premises. There was no alternative, she found, that would not present other unacceptable safety risks.
(xiii) Accordingly, the Deputy Traffic Commissioner concluded that the proposed operating centre was not suitable because the only realistic currently available access route cut through the garden of “The Willows” and was inherently unsafe, and any permissible condition to alleviate it was inappropriate, impractical or created other unacceptable dangers.
(xiv) The Deputy Traffic Commissioner therefore refused the application to operate two vehicles from the proposed operating centre but gave the operator a period of 42 days to lodge an application for a new operating centre or, alternatively, to notify the Traffic Commissioner’s office that it wished to surrender the operator’s licence. By Notice of Appeal dated 12 September 2012, the operator has appealed the Deputy Traffic Commissioner’s decision to the Upper Tribunal, and this is the appeal that we now determine.
3) At the hearing of this appeal, the appellant company was represented by Mr Dod (Director) who relied upon his grounds of appeal and made further oral representations. Mr and Mrs Ngantu also attended at the hearing and made brief representations. We were grateful to all persons attending for their assistance.
4) The substantive point made in the grounds of appeal was that the Deputy Traffic Commissioner’s decision failed to take account of a number of matters that Mr Dod considered important and relevant. The grounds of appeal state:
“Both the representors and ourselves as appellants (operators) were obviously under the impression that the hearing would present an informal opportunity to discuss all merits of the case. In the event this hearing was carried out as if it was a court of law. It became very apparent that the Commissioner was only prepared to hear argument as it related to environmental issues and health and safety considerations as they related to the site. It is felt that a fair and balanced view was not taken in the making of this decision as past circumstance and history were not considered”.
5) The grounds of appeal then suggested that the Deputy Traffic Commissioner’s decision went against the previous recommendations of Traffic Examiners and against the previous Deputy Traffic Commissioner’s decision. Risks of danger arising to children and animals plainly existed on almost every industrial estate where children and animals roam and arise whether access is used by cars or heavy goods vehicles. The history included reference to the fact that the commercial and residential premises were only separated in the early 1990s and the right-of-way providing access to the commercial premises was established at that time – before the representors purchased the house, some years later. Consequently, they were fully aware of the rights of way at that time. In relation to overhanging trees and the impact of hedging on drivers’ visibility, no attempt had been made by the representors to improve the position.
6) At the hearing, Mr Dod maintained that the Deputy Traffic Commissioner had only been prepared to listen to arguments relating to “health and safety” and had declined to take into account the “whole history of the site”. We asked Mr Dod if he could be more specific as to any particular relevant matter that the Deputy Traffic Commissioner had refused to consider and Mr Dod explained that, in his view, the Deputy Traffic Commissioner should have considered the history and nature of the right-of-way, and the fact that danger would arise no matter what sort of vehicle was used. Mr Dod also stressed that the operator had been entirely unaware of the previous hearing before the tribunal when Mr and Mrs Ngantu successfully appealed against the refusal of the previous Deputy Traffic Commissioner to review his decision.
7) Mr and Mrs Ngantu expressed their view that the subsequent Deputy Traffic Commissioner had “followed the rules to a tee”.
8) It is clear from the previous decision of the Upper Tribunal that the question of suitability was, again, at large and the call-up letter dated 11 June 2012 convening the public inquiry fully set out the relevant statutory provisions. The complaint that the decision now appealed against was inconsistent with previous decisions is without merit. The Deputy Traffic Commissioner was obliged to consider the evidence for herself, and to reach a fresh decision based upon the evidence and having proper regard to any impressions she herself formed at the site visit.
9) In this case, a site visit was arranged and the Deputy Traffic Commissioner also received fresh evidence from Traffic Examiners, which included the comment that:
“As a vehicle enters entrance 2 it passes Leylandii hedging to the near side. There are large gaps at the bottom of this hedging. Behind the hedging is a patio area to the house. A small child (or pet) could easily run through the gap in this hedging and not be seen, as it would be in the driver’s blind spot as the vehicle enters. I photographed the drivers view from the vehicle in this position. I asked Mary Deare, Traffic Examiner, to stand in the patio area with her back to the hedge whilst the specified vehicle entered the driveway in its normal manner. Mrs Deare advised me that the noise of the vehicle entering could not easily be separately distinguished from the ambient traffic noise from the A17. This is a safety issue in respect of children playing in the area.”
10) The Traffic Examiner concluded that there was a clear safety issue regarding the driver’s visibility to the nearside as the vehicles passed the hedging, and any vehicles entering or leaving using the (only available) entrance would be a risk to residents.
11) In Surrey County Council v Paul Williams [2003] EWCA Civ 599, the Court of Appeal considered that, absent any other relevant factor, an appellate body would be slow to interfere with a decision within the discretion of an expert Traffic Commissioner following a site visit.
12) In David Holloway 2004/202 the Transport Tribunal said:
“We have quoted at length from these earlier decisions to stress once again that Traffic Commissioners should not be invited or expected to investigate or resolve outstanding questions of property law.”
13) In 41/2001 Tate Fuel Oils Ltd the Transport Tribunal said:
“The main submission in the appeal was that the Traffic Commissioner could not properly have concluded that the site was unsuitable on road safety grounds. Mr Hodgson submitted that there was no evidence of previous accidents; that the Vehicle Inspectorate considered that there was no hazard in leaving or entering the site if the driver took care; that objections had not been made by the Highway Authority or by the police; and that the application involved only three vehicles and that these would be leaving at specified times, when the road was unlikely to be busy. On the other hand, the Traffic Commissioner had himself been to see the site and had been able to form his own opinion, which was supported by evidence from the Parish Council. In considering the issue of suitability we think that this was essentially a matter for the Traffic Commissioner’s discretion and that there was evidence upon which he was entitled to come to his conclusion. Accordingly, this ground fails.”
14) So far as suitability is concerned, we confirm that safety is a highly relevant consideration when deciding whether a site is suitable for use as an operating centre under S.13C(5) of the Act, but only insofar as it relates to any private access route between the operating centre itself and the point where vehicles first join or leave a public road to travel to or from the proposed operating centre. How such an access route came into being, what the history of previous use might be, and what evidence there might be of previous acceptance of risk by others are all matters which are unlikely to weigh heavily in the mind of a Traffic Commissioner considering, in accordance with his or her statutory duty, whether an operating centre is suitable on safety grounds at the time of the consideration.
15) Moreover, the Deputy Traffic Commissioner in the present case was, in our view, right to resist being drawn into the history of the site, and was correct to remain focussed on suitability and environmental nuisance. She found that the safety issues were such as to render the site unsuitable. She reached this conclusion after finding that her own impressions confirmed the evidence of the Traffic Examiners. We do not consider that the danger from a goods vehicle is the same as from other, possibly more responsive, types of motor vehicle and, in this case, the drivers position is relevant to sight and visibility. In any event, the Deputy Traffic Commissioner cannot be expected to overlook inherent danger from authorised vehicles just because vehicles that do not need authorisation may also generate safety concerns.
16) As in Tate Fuel Oils Ltd, we think that the decision on suitability was essentially a matter for the Deputy Traffic Commissioner’s discretion and we are satisfied that there was cogent evidence upon which she was entitled to come to her conclusions.
17) The Deputy Traffic Commissioner then properly considered whether she could impose any permissible conditions on the operator that would adequately ameliorate the dangers, and she found that she could not. She had no power to impose conditions on the representors and no power to direct the creation of a new entrance or access route. Accordingly, the only proper decision she could make having regard to her findings on safety and, thus, suitability, was that the application to use the proposed operating centre could not be granted. Very fairly, in our judgment, she then allowed the operator some time to try and find an alternative site.
18) We would add that we consider that the Deputy Traffic Commissioner conducted the public inquiry and the site visit in an exemplary fashion, taking the greatest care to be scrupulously fair, whilst declining (for the reasons that she gave) on several occasions to be distracted by matters outside her jurisdiction. The criticism of over-formality is misplaced. It is clear from the transcript that the Deputy Traffic Commissioner maintained the formality and structure of the public inquiry in order to prevent it degenerating into a free-for-all. She thereby avoided the possibility of the inquiry becoming an unstructured and injudicious general discussion, something that the tribunal has warned against on a number of previous occasions.
19) The appeal is dismissed. The operator now has a further period of 42 days from the date of this decision either to lodge a variation application for a new operating centre, including the placement of a valid advertisement, or to notify the Traffic Commissioner’s office that it wishes to surrender the operator’s licence with immediate effect.
Judge Mark Hinchliffe, DCP
4 December 2012