Neutral Citation Number: [2012] UKUT 454 (AAC) Appeal No: T/2012/59

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF NICHOLAS JONES,

TRAFFIC COMMISSIONER for the WEST MIDLAND TRAFFIC AREA,

DATED 17 SEPTEMBER 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:

KEVIN SMITH t/a MIDLAND MARBLE LTD

 

 

Attendance:

For the Appellant: No attendance

 

 

Appeal heard at: Victory House, Kingsway, London

Date of hearing: 19 November 2012

Date of decision: 4 December 2012

 

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be dismissed.

 

 

Subject matter:

·    Non-compliance with S.11 of the Goods Vehicles (Licensing of Operators) Act 1995 and Schedule 1 of the Goods Vehicles (Licensing of Operators) Regulations 1995.

·    Traffic Commissioner’s discretion to accept an advertisement which is non-complaint in form or content if satisfied that no person's interests are likely to have been prejudiced by the failure to comply with those requirements.

 

Cases referred to:

2003/116 A Reid

 

 

 

 

REASONS FOR DECISION:

 

1)     This was an appeal from the decision of the Traffic Commissioner for the West Midland Traffic Area made on 17 September 2012 when he decided to refuse an application for a restricted operator’s licence authorising two vehicles, under S.11(1) of the Act.

 

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 made an application for a restricted goods vehicles operators licence authorising two vehicles, and nominating an operating centre at 80, Dollman Street, Heartlands, Birmingham B7 4RP.

(ii)    A notice had been placed in the Birmingham Mail on 3 August 2012, which, after setting out some particulars of the operator and the application stated:

“Owners of land (including buildings) near the operating centre who believe that their use or enjoyment of that land would be affected, should make written representations to the Traffic Commissioner at Hillcrest House, 386 Harehills Lane, Leeds LS9 6NF stating their reasons, within 21 days of this notice. Representors must at the same time send a copy of their representations to the applicant at the address given at the top of this notice. A Guide to making representations is available from the Traffic Commissioner’s office.”

(iii)  A team leader in the Traffic Commissioner’s Office noted that the wording used in the advertisement was “completely different” from the template given in the guidance to operators which is included in all application forms. The Traffic Commissioner decided that:

“…legislation sets out that if the advertisement is flawed the application must be refused without going on to consider the merits of the application.”

(iv)  The grounds of appeal, amongst other things, assert that:

“the guidance for the advert to be placed does not state that the wording has to be precisely the same as the guidance and our argument is that the slight change to the wording does not alter the meaning of the advert at all”.

 

3)     Mr Smith did not attend at the hearing before us. He wrote to the tribunal stating that “Due to having a child care issue on Monday 19^th I ask that the case is heard in my absence using the written plea already in your possession”. We therefore decided to proceed.

 

4)     Section 11 of the 1995 Act provides:

 

11-(1) Subject to subsection (3), the traffic commissioner to whom an application for an operator's licence is made shall refuse the application without considering the merits unless he is satisfied that subsection (2) has been complied with in respect of each locality affected by the application.

(2) This subsection has been complied with in respect of a locality affected by an application if, within the period beginning 21 days before the date on which the application is made and ending 21 days after that date, notice of the application in such form and containing such information as may be prescribed has been published in one or more local newspapers circulating in the locality.

(3) The traffic commissioner is not required by this section to refuse an application if-

(a) he is satisfied as mentioned in subsection (1), save only that the form or contents of the notice of application as published in any newspaper did not comply with the prescribed requirements, and

(b) he is satisfied that no person's interests are likely to have been prejudiced by the failure to comply with those requirements …

 

5)     The form and information prescribed is as set out in the 1995 Regulations, and Regulation 7(2) provides:

 

7(2) The notice of an application to be published in accordance with section 11 … shall give the information specified in Schedule 1.

 

6)     Schedule 1 lists the required information:

 

·        Name of applicant.

·        Trading name, if any.

·        Address for receipt of correspondence.

·        Whether the application is in respect of a new licence, or the variation of a licence.

·        The place or places proposed to be used as an operating centre or centres (including, if available, the postal address or addresses).

·        The number of motor vehicles and trailers proposed to be kept at each operating centre or centres.

·        The number of motor vehicles and trailers now kept, if different.

·        In respect of an existing licence, details of any proposed changes to or removal of existing conditions or undertakings affecting an operating centre.

 

7)     In addition, Schedule 1 requires that every notice shall contain the following wording:

 

“Owners or occupiers of land (including buildings) near the operating centre(s) who believe that their use or enjoyment of that land would be affected, should make written representations to the Traffic Commissioner at [address of Traffic Area Office] stating their reasons, within 21 days of this notice. Representors must at the same time send a copy of their representations to the applicant at the address given at the top of this notice. A Guide to making representations is available from the Traffic Commissioner’s office.”

 

8)     Prospective applicants are provided with Guidance (GV79) and a specimen template (Annex A). The Guidance states that Annex A gives an example of an advertisement “that you can use for your advertisement(s)” - our underlining. One advantage of using the suggested template is that it ensures that the prescribed matters listed above in paragraph 6 of our decision are all covered. However, the guidance also makes it explicit in two places that the wording of the final section of the advertisement, referring to the making of representations, should use precisely the same words as those set out in the template, these being the required words as prescribed by Schedule 1 and as set out above in paragraph 7 of this decision.

 

9)     Having carefully read all the papers in the case, we have decided that the Traffic Commissioner’s final decision was correct. However, notwithstanding this conclusion, we do have some concern about that way that the Traffic Commissioner approached this matter.

 

10) Our anxiety lies with the failure of the Traffic Commissioner to explicitly address the question of how, and in what respects, the actual advertisement failed to comply with the form or content requirements of Schedule 1. Non-compliance with the template in Annex A is not, in itself, a mandatory ground for refusal. Moreover, having identified any irregularity, the Traffic Commissioner should have gone on to consider the discretion given by S.11(3) and, in particular, whether any person's interests were likely to have been prejudiced by the failure to comply with those requirements.

 

11) It will be seen that, in this case, a key omission in the actual advertisement is that the words “or occupiers” are omitted from the final section (set out in paragraph 2(ii) of this decision) which should have begun: “Owners or occupiers of land …”

 

12) In considering whether this omission is likely to have prejudiced any person’s interests, we bear in mind the guidance of the Transport Tribunal in 2003/116 A Reid where the tribunal considered that an error that may mislead people entitled to make representations into believing that they were not entitled to make representations would have clearly prejudicial consequences:

“It is important to those entitled to make a statutory objection under s.12(1) of the 1995 Act and it is, perhaps, even more important to those entitled to make representations under s.12(4), because it is only the ‘owner or occupier of land in the vicinity’ of the proposed operating centre who is given the right to make representations …. In our judgment the approach of the Deputy Traffic Commissioner cannot be faulted.  He rightly dealt first with the question of whether the application had been properly advertised.  He correctly concluded that the answer to that question was that the place to be used as the operating centre had not been stated in the advertisement and he then properly declined to exercise his discretion under S.11(3) of the 1995 Act, because it is quite clear that the failure to identify the operating centre was likely to have prejudiced the interests of other people.

 

13) In our view, any errors in terms of form or content, or deviation from the suggested template, in that part of the advertisement that preceded the passage we have quoted in paragraph 2(ii) above were, arguably, errors of form not substance and may not have breached the requirements of Schedule 1 or, if they did, may have been accepted as not prejudicial to anyone’s interests. However, the omission of the words “or occupiers” from the mandatory passage was clearly prejudicial, and may well have had the effect of misleading mere occupiers into believing that only owners could make representations.

 

14) Consequently, had the Traffic Commissioner properly considered the precise respects in which the advertisement failed to comply with the requirements of Schedule 1, and then (having identified any irregularity) had he gone on to consider whether any person's interests were likely to have been prejudiced by the failure to comply with those requirements, he would have been bound to conclude that the advertisement could not be accepted. Had he clearly explained his decision in these terms, the appellant may well have understood and accepted his decision, and focused his energies on placing a new, complaint advertisement, rather than on appealing to the Upper Tribunal.

 

15) The appeal is dismissed.

 

Judge Mark Hinchliffe, DCP

4 December 2012