Neutral Citation Number: [2013] UKUT 28 (AAC)

Appeal No.  T/2013/3

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF Beverly Bell

 SENIOR TRAFFIC COMMISSIONER for the NORTH WEST

 TRAFFIC AREA Dated 21 December 2012

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Appellant:

BRADLEY FOLD LIMITED

PETER WRIGHT

Date of decision: 4 February 2013

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be STRUCK OUT under Rule 8(2) of the Upper Tribunal Rules 2008.

REASONS FOR DECISION

1.               This is an appeal from the decision of the Senior Traffic Commissioner for the North Western Traffic Area made on 21 December 2012, that she recuse herself from determining the Appellants’ applications for the return of two impounded vehicles made under regulation 11(1) of the Public Service Vehicles (Enforcement Powers) Regulations 2009 (“the regulations”). 

2.     The Tribunal considered the appeal on 13 January 2013 and came to the provisional view that the appeal should be struck out under rule 8(4) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Tribunal Rules”).  The Tribunal’s reasoning was that its jurisdiction to hear and determine appeals in impounding cases was limited to determinations made by Traffic Commissioners upon the merits of an application made under regulation 11(1) for the return of impounded vehicles under regulation 3(1) of the regulations.  The decision of the Senior Traffic Commissioner to recuse herself could not be categorised as a determination under regulation 11(1).

3.     The Appellants were given an opportunity to make representations in writing in relation to the proposed striking out under rule 8(4) of the Tribunal Rules.  By a letter dated 17 January 2013, Mr Wright made representations in which he agreed that the Tribunal lacked jurisdiction under regulation 15 of the regulations to hear an appeal from the Senior Traffic Commissioner’s decision to recuse herself.  However, he submitted that the Tribunal had “incorrectly restricted itself” in considering its jurisdictional powers.  Mr Wright now submits that the appeal engages the Tribunal’s jurisdiction under “s9 Schedule 4 of Transport Act 1985”.  The Tribunal interprets Mr Wright’s reference to meaning “paragraph 9 of Schedule 4 of the Transport Act 1985” (“1985 Act”), there being no section 9 in Schedule 4.  He submits that as a determination under the 2009 regulations necessarily involves a decision that a vehicle was being used in contravention of s.12(1) of the Public Passenger Vehicles Act 1981, paragraph 9 of Schedule 4 is engaged.  Mr Wright also prays in aide the title of form UT12, the appeal form upon which Appellants submit notices of appeal to the Tribunal, which refers to “a decision of a Traffic Commissioner”. 

4.     The Tribunal cannot agree that it has any alternative jurisdiction to regulation 15 by virtue of paragraph 9 of Schedule 4 of the 1985 Act as this provision was repealed by Article 4(1) of Schedule 1, paragraphs 5 and 9(b) of the Transfer of Functions (Transport Tribunal & Appeal Panel) Order 2009 (SI 2009/1885).  However, that Schedule inserted into Schedule 4 of the 1985 Act a similar provision to the repealed paragraph 9.  Paragraph 17 provides:

(1)  The first-tier tribunal and the upper tier tribunal are to have full jurisdiction to hear all matters (whether of law or fact) for the purpose of the exercise of any of their functions under an enactment relation to transport”.

(2)  On an appeal from any determination of a traffic commissioner other than an excluded determination, the Upper Tribunal is to have power

a)    To make such order as it thinks fit ...

This provision does not however, assist Mr Wright in his submissions as the Tribunal’s jurisdiction to hear all matters and make such orders as it sees fit is dependent upon the jurisdictions conferred upon it by statute.  The jurisdiction in relation to impounded vehicles is conferred by regulation 15 of the regulations.  It matters not that the basis of a decision to impound is that a vehicle was being operated in contravention of s.12 of the Passenger Vehicles Act 1981. Neither does the title of the appeal form assist Mr Wright.  The title presupposes that the appeal submitted falls within the jurisdiction of the Tribunal.

5.     Finally, Mr Wright has raised in his representations, an additional complaint that the 28 day period for holding a public inquiry to determine the Appellants’ applications for the return of the vehicles has been exceeded.  He also complains that despite the passing of 66 days (as at the date of his written representations) publication has not yet been made in accordance with regulation 12(2) of the regulations.  These alleged failures do not engage the jurisdiction of the Tribunal under regulation 15 for the same reasons as its jurisdiction is not engaged by the Senior Traffic Commissioner’s decision to recuse herself.

6.     In the circumstances, the appeal is struck out under rule 8(4) of the Tribunal Rules.

Her Honour Judge Beech

4 February 2013