Neutral Citation Number: [2014] UKUT 189 (AAC)   Appeal No.  NT/2014/02

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER (Transport)

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Donald Armstrong HEAD of the TRANSPORT REGULATION UNIT

Dated 2 December 2013

 

 

 

Before:

His Hon Michael Brodrick, Judge of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

David Rawsthorn, Member of the Upper Tribunal

 

 

Appellant:

Mrs JANET LYONS t/a LYONS HAULAGE

 

and

 

Respondent:

 

DEPARTMENT of ENVIRONMENT NORTHERN IRELAND (DOENI)

 

 

Attendances:

For the Appellant: John McGrath, instructed by Logan Corry Solicitors

For the Respondent: Ms Nessa Fee BL

 

 

Heard at: Bedford House, 16-22 Bedford Street, Belfast.

Date of hearing: 20 March 2014

Date of decision: 23 April 2014

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.  The revocation of the licence will take effect at 2359 on 20 April 2014

 

 

 

 

 

SUBJECT MATTER:- Good Repute, Financial Standing and Professional Competence

 

 

CASES REFERRED TO:- T/2012/17 NCF (Leicester) Ltd

NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI

NT/2013/82 Arnold Transport & Sons Ltd v DOENI

 

REASONS FOR DECISION

 

 

1.         This is an appeal from the decision of the Head of the Transport Regulation Unit, (“TRU”), to revoke the standard international goods vehicle operator’s licence held by the Appellant and to disqualify the Appellant from holding or obtaining an operator’s licence for a period of 3 years with effect from 23.59 on 31 December 2013 and to disqualify her from acting as a Transport Manager for 3 years.

2.        The factual background to this appeal appears from the documents and the Head of the TRU’s decision and is as follows:-

(i)               The Appellant is the holder of a standard international goods vehicle operator’s licence authorising 10 vehicles and 10 Trailers.  She is also the designated Transport Manager for this licence.

(ii)              The Appellant’s operating centre is at 157 Crevenagh Road, Omagh.  The premises are shared with Mark Lyons, (her husband), who holds a permit authorising him to operate 4 vehicles and 4 trailers.

(iii)             On 24 August 2009 four vehicles operated by Lyons Haulage tested positive for rebated fuel.  They were seized but three were later restored for a fee of £1545.

(iv)            On 21 July 2010 three vehicles operated by Lyons Haulage together with storage tanks tested positive for rebated fuel.

(v)             On 23 September 2010 a Delayed Prohibition was issued to one of the Appellant’s vehicles in respect of a tachograph, which was not properly calibrated, and oil leaks from the engine area.  The vehicle was required to be submitted for a partial test.  There is no record that it was ever submitted for such a test.  The vehicle was under-taxed in that it was operating at 35,810 kgs, had a plated weight of 38,000 kgs but was taxed at the rate for a gross weight of 31,000 kgs.  The Appellant was subsequently fined a total of £1,750 for four tachograph offences.  The driver of the vehicle was subsequently fined £1,300 for tachograph offences.  He was required to produce an insurance certificate to cover his driving on 23 September 2010.  The certificate that he produced showed that the insurance was in the name of “Mark Lyons, trading as Lyons Haulage”.  When interviewed he said that he was driving on instructions given by Mark Lyons.

(vi)            The Appellant appealed against the convictions for tachograph offences resulting in fines totalling £1750.  These appeals were dismissed.  However she had also been convicted of an offence of having no policy of insurance in respect of the use of the vehicle.  Mark Lyons gave evidence on the appeal to the effect that Lyons Haulage was a family run business in which he was still involved.  The appeal against the conviction for having no policy of insurance was successful.

(vii)           On 24 September 2010 another of the Appellant’s vehicles was stopped and found to be under-taxed.

(viii)          On 22 January 2011 five vehicles operated by Lyons Haulage tested positive for rebated fuel.

(ix)            On 16 February 2011 one of the vehicles listed on the Appellant’s licence was stopped at Stranraer.  Fuel from the running tank was tested and positive indications that it contained rebated fuel were found.  The vehicle was seized.  The Appellant’s application to have it returned was refused.  She asked for that decision to be reviewed.  The result of that review is set out in a letter dated 20 April 2011.  The letter summarised the facts and explained why the material put forward by the Appellant was not sufficient to justify the return of the vehicle.  It went on to indicate that, on the contrary, it raised concerns about the commission of other fuel offences.  The letter went on to set out the policy adopted by HMRC, (“Her Majesty’s Revenue and Customs”), as to returning seized vehicles.  In general terms that policy is to provide increasingly hard restoration terms for the first two detections and a strict non-restoration policy on the third detection.  At the start of the section headed “Conclusion” the Review Officer said this: “From my examination of the papers I am satisfied that this offence had been correctly treated as the fifth oils misuse offence connected with you due to your involvement with Lyons Haulage.  I am content that you were a ‘guiding mind’ in the day to day running of Lyons Haulage as you registered the business for VAT in 2008 and also the fact that Mark Lyons is your husband”.  The vehicle was not returned.

(x)             On 17 April 2011 an immediate prohibition was issued to one of the Appellant’s vehicles because the front axle nearside and offside brake discs were fractured.  The front numberplate was defective.  The Appellant was fined £600 because the tachograph system was not sealed correctly.  The armoured cable had been breached and additional wiring had been spliced to the existing wiring, offering the opportunity to employ an interrupter device to create false tachograph records.  The vehicle was required to be presented for a partial test but there is no record that it was ever presented for such a test.  Attempts to contact the Appellant in order to interview her about these matters were not successful.

(xi)            On 21 April 2011 the Appellant was requested, by letter, to produce tachograph records in relation to eight specified vehicles.  Two reminders were sent but no tachograph records were produced.  Attempts to arrange an interview were unsuccessful.  The Appellant was subsequently fined a total of £375 for five offences of failing to produce tachograph records.

(xii)           On 10 June 2011 a DAF vehicle, listed on the Appellant’s licence, was tested at the HMRC testing station at Larne Docks.  Fuel from the running tank was tested and found to be ‘red diesel’.  The driver provided a phone number, which resulted in a telephone conversation with Mark Lyons who claimed that he owned the vehicle and had no previous offences.  The vehicle was seized.  There was no appeal against the seizure.

(xiii)          On 11 June 2011 a Scania vehicle, listed on the Appellant’s licence, was tested at Belfast Docks.  The fuel in the running tank was found to be ‘laundered’ fuel.  The vehicle was seized.  The Appellant applied to have the vehicle returned but the application was refused.  The Appellant challenged the legality of the seizure.  On 6 March 2012 that challenge failed and the vehicle was condemned by Belfast Magistrates Court.

(xiv)         On 23 June 2011 laundered red diesel was found in a Scania Tractor, operated by the Appellant.  The vehicle was seized.

(xv)          On 5 August 2011 the Appellant was sent a letter requesting production of tachograph records relating to the eight specified vehicles referred to in the investigation, which had commenced in April 2011.  This was a continuation of the same investigation.  The request related to a different period.  Two reminder letters were sent later in August 2011 but no tachograph records were produced.  Several attempts were made to arrange an interview with the Appellant in respect of this matter but they were unsuccessful.  On 8 March 2012 the Appellant faxed a copy of a letter dated 31 August 2011 in which she explained why she was unable to produce these records.  That explanation was accepted.

(xvi)         On 30 August 2011 the Appellant was cautioned because one of her vehicles had no valid Road Freight Vehicle Licence.  The previous licence had expired on 8 July 2011. The Appellant was sent a letter informing her that while no action was being taken on this occasion the matter would remain on the file and that legal proceedings might be instituted if there was any similar breach.

(xvii)        On 27 September 2011 fuel from another Scania vehicle, operated by the Appellant tested positive, indicating that it could not lawfully be used or transported by the Appellant.  The vehicle was seized.

(xviii)       On 11 April 2012 the DVA revoked the operator’s licence held by the Appellant. Until 1 July 2012, when the Goods Vehicles (Licensing of Operators) Act Northern Ireland) 2010, (“the 2010 Act”) came into force the DVA had responsibility for Heavy Goods Vehicle operator’s licensing.  As from that date responsibility passed to the Transport Regulation Unit, (“TRU”), acting on behalf of DOENI.

(xix)         On 18 October 2012 HMRC wrote to the Appellant to explain that following the seizure of the Scania vehicle on 11 June 2012 a road fuel audit of her business had been completed.  She was issued with an Excise Duty Assessment, which was upheld after an internal review.  We have not added any further details because it appears that this assessment may remain subject to challenge.

(xx)          On 5 December 2012 an immediate prohibition was issued to one of the Appellant’s vehicles, which was overloaded.  It exceeded its lawful gross train weight by 10.8%, (4340 kgs).  The prohibition required that the load to be adjusted to come within the legal limits.  The driver informed the Vehicle Examiner that the operator was “Mark Lyons”. 

(xxi)         On 6 February 2013 a defect notice was issued to one of the Appellant’s vehicles because the tachograph was defective and it was under taxed.  The defect notice required that the defect should be repaired and presented for a partial test within 14 days.  It was not presented for a partial test.

(xxii)        On 20 March 2013 an immediate prohibition was issued to one of the Appellant’s vehicles.  Subsequently the Appellant was fined a total of £180 for two offences of overloading this vehicle, which also had defective brakes.  One of the overloading offences related to the gross train weight, which was exceeded by 10.8%, (4340 kgs).  The other related to the fact that the vehicle was 7% overweight, (1700 kgs), on three closely spaced axles.  The brakes were defective because of an air leak in the semi trailer and the ABS warning light being illuminated.  The prohibition required that the load should be adjusted to within legal limits and that the other defects should be repaired. The vehicle displayed a Goods Vehicle Identity Disc issued to the Appellant but the driver, (Jason Lyons), said that the operator was “Mark Lyons”.  It was under taxed for its weight.

(xxiii)       On 10 April 2013 an incident occurred in relation to one of the Appellant’s vehicles, which was being driven by Jason Francis Lyons.  The incident is the subject of proceedings, which have not yet been resolved.  The vehicle in question was under taxed for its weight.

(xxiv)       On 17 April 2013 the Transport Regulation Unit, (“TRU”), acting on behalf of DOENI, wrote to the Appellant stating that it had come to the Department’s attention that two vehicles, (GJZ5952 & Y593PDX), were currently being operated under a temporary permit issued to Mark Lyons, (the husband of the Appellant).  The Appellant was instructed to remove both vehicles from the list of those authorised to be operated under her own licence.

(xxv)        On 22 May 2013 an immediate prohibition was issued to one of the Appellant’s vehicles because of defective brakes.  The offside front brake disc was cracked.  The prohibition required that the defect be repaired and that the vehicle should be submitted for a partial test.  This was not done.  The vehicle was not currently taxed.

(xxvi)       On 20 June 2013 the Appellant’s appeal against the decision of the DVA to revoke her operator’s licence was allowed by His Hon. Judge Miller.

(xxvii)      On 24 June 2013 a vehicle operated by the Appellant was stopped and found to be under taxed.

(xxviii)     On 25 July 2013 an immediate prohibition was issued to one of the Appellant’s vehicles because it was overloaded.  The permitted gross train weight was exceeded by 4.6%, (2040 kgs).  The prohibition required that the load should be adjusted to within the legal limits. The Appellant was fined £60 in respect of this offence.  The vehicle was displaying a Goods Vehicle Identity disc issued to the Appellant.  The driver advised that the operator was “Mark Lyons”.

(xxix)       On 12 August 2013 an immediate prohibition was issued to one of the Appellant’s vehicles because of (a) defective suspension, (the suspension air chamber had burst), (b) an air leak from the semitrailer, (c) a cracked windscreen and (d) a defective mirror.  The prohibition required that the defects should be repaired and the vehicle should be presented for a partial test.  There is no record that it underwent a partial test.  The vehicle was not currently taxed.

(xxx)        In the period since September 2010 vehicles operated by the Appellant were encountered by DVA, (“Driver and Vehicle Agency”), enforcement officers on 14 occasions.  The non-compliance rate was 100% because no encounter was clear.

(xxxi)       In the three year period prior to 10 September 2013 a total of 11 initial annual roadworthiness tests took place in Northern Ireland on the Appellant’s vehicles. Three vehicles passed first time, an initial pass rate of 27%.

(xxxii)      On 4 October 2013 the TRU wrote to the Appellant calling her to a Public Inquiry that was scheduled to take place on 7 November 2013.  The letter informed the Appellant that the Head of the TRU would consider directing that the licence should be revoked, suspended or curtailed, under s. 23(1) of the Goods Vehicles (Licensing of Operators) Act Northern Ireland) 2010, (“the 2010 Act”) and/or whether he was required to revoke the licence under s. 24(1) of the 2010 Act.  The letter went on to explain that if the licence was revoked the Head of the TRU would go on to consider whether or not to disqualify the Appellant.  The letter then summarised the grounds on which action might be taken and the evidence that the Head of the TRU would consider.  Documents setting out the detailed evidence were enclosed with the letter.  The Appellant was warned that the Head of the TRU would also take into account any material of which he became aware after the date of the letter.  In particular the letter referred to the fact that he was aware that Her Majesty’s Revenue and Customs, (“HMRC”) had detected illegal fuel in vehicles operated by the Appellant.  It warned that supplementary information about this would be provided in due course.  In relation to the requirement to be of appropriate financial standing the letter required the Appellant to submit up-to-date financial information, in various forms, by 24 October 2013.  Finally the letter warned that the TRU was unlikely to adjourn the Public Inquiry in the absence of exceptional circumstances.

(xxxiii)     On 21 October 2013 the TRU wrote to the Appellant enclosing information from HMRC and PSNI, (“Police Service of Northern Ireland”), explaining that it might be considered at the Public Inquiry.

(xxxiv)    On 28 October 2013 the Appellant telephoned the TRU.  In view of her belligerent manner the call was transferred to Kevin Lawless, who made a file note of the conversation.  He recorded that the Appellant began by asking why she had been called to a Public Inquiry when her operator’s licence had previously been restored on an appeal to a Judge.  Mr Lawless explained that further information had come to light, which justified a review of her licence.  The Appellant replied that the information she had been sent was incorrect and that she must have been confused with another operator.  She did not reply when asked to identify the other operator.  She said that she had instructed a Solicitor and that she intended to attend the Public Inquiry.  She was reminded that the call-up letter had requested information, which had not, at that stage, been provided.

(xxxv)     On 31 October 2013 the Appellant’s Solicitors wrote to the DVA.  On receipt of this letter it was passed to the TRU, to whom it should have been addressed.  Referring to the fact that the appeal against the revocation of the operator’s licence had been allowed, (see paragraph 2 (xxvi) above) the Appellant’s Solicitors asserted that in seeking to revoke the Appellant’s operator’s licence on the same grounds as before the Head of the TRU was attempting to undermine the appeal court’s decision in a way which amounted to an abuse of the process of the Court.  The Department was requested to abandon the Public Inquiry.

(xxxvi)    On 1 November 2013 the Head of the TRU replied to this letter.  He explained that while the information contained in the letters of 3 and 21 October included the matters considered previously those letters also detailed numerous other issues.  The Appellant’s Solicitors were informed that the Public Inquiry would proceed as planned.

(xxxvii)   The Public Inquiry took place before the Head of the TRU on 7 November 2013.  The Appellant was not present, due to ill health.  She was represented by Mr John McGrath.  Mark Lyons was present.

(xxxviii)  At the very start of the Public Inquiry Mr McGrath said that he wished to raise a formal point.  He referred to the fact that the call-up letter was sent two months after the successful appeal against the DVA’s revocation of the Appellant’s operator’s licence.  He submitted that the Public Inquiry sought to undermine the appeal court’s decision in that the same standard and the same test would be applied in relation to good repute, financial standing and professional competence.  The Head of the TRU began by pointing out that the DVA had acted under the provisions of the Transport Act 1967 whereas the Public Inquiry was called under the provisions of the 2010 Act.  He went on to point out that no decision had been taken at that stage because the purpose of the Public Inquiry was to examine the evidence in order to decide whether any, and, if so, what, action was justified.  He explained that in April 2012 revocation was ordered on the sole ground that the Appellant was no longer of good repute, while the Public Inquiry would be considering other grounds in addition.  He pointed out that in April 2012 the material on which the DVA took action consisted solely of ten convictions, whereas the Public Inquiry would consider other material in addition, so that it would look at a much bigger picture.  Mr McGrath did not pursue this point further.

(xxxix)    The Head of the TRU then went through the material, which had been provided for use at the Public Inquiry.  He pointed out that the call-up letter had requested the Appellant to provide financial information but that none had been received.  Mr McGrath said that the explanation was that the Appellant had provided financial information in September 2013, in support of her application to renew her licence.  The Head of the TRU replied that he was not aware of such information but would check whether it had been received.

(xl)            Mr McGrath indicated that he was, in general, content with the contents of the DVA report, subject to any matters yet to be resolved by other Courts.  He accepted that there were a number of relevant convictions and fixed penalties.  He invited the Head of the TRU to consider all the surrounding circumstances when considering what action to take.  In particular he invited the Head of the TRU to consider whether, in the particular circumstances of this case loss of good repute would be a disproportionate response.  He added that lessons had been learned and that safer procedures would be put in place.

(xli)           In relation to the use of rebated fuel Mr McGrath pointed out that no formal criminal charges had been brought in relation to any of these matters.  He submitted that the Appellant had bought the fuel in good faith.

(xlii)          In answer to a question about the business of Lyons Haulage Mark Lyons said that: “we all trade together”.  He explained that the Appellant dealt with the haulage side of the business but that there was also a farming business and an agricultural merchant aspect of the business.  There then followed some discussion as to which of the vehicles featuring in the reports were on the Appellant’s licence.  It became apparent that there was some scope for confusion given that Mr Lyons had a permit to operate in the name of Lyons Haulage, so that he could run his part of the business without relying on his wife.

(xliii)         The Public Inquiry concluded on the basis that the Head of the TRU would issue a written decision having carefully assessed the available material and having satisfied himself that the vehicles listed in the documents were connected to the Appellant.

(xliv)        The Head of the TRU issued a written decision dated 2 December 2013.  He began by setting out the background leading up to the Public Inquiry.  He then went on to deal with request, which had been made privately at the outset, that he should consider adjourning the Public Inquiry to enable the Appellant to attend.  He indicated that he was prepared to adjourn the Public Inquiry for a period of about 14 days.  He offered three alternative dates.  However he indicated that given the number and the seriousness of the matters disclosed in the papers he would suspend the licence pending the adjourned hearing.  After retiring to consider the position Mr McGrath and his instructing Solicitor returned to say that they would proceed with the Public Inquiry.

(xlv)         The Head of the TRU then summarised the preliminary point raised by Mr McGrath, (see paragraph 2(xxxviii) above) and his reply to it.  He then set out the evidence which we have summarised above.

(xlvi)        The Head of the TRU then dealt with the favourable and unfavourable aspects of the case.  He was unable to find much of any weight in favour of the Appellant.  He set out unfavourable factors under eleven headings.  In particular he was unimpressed by the Appellant’s failure to take any responsibility for the infringements in relation to the use of rebated fuel and he rejected her explanation that she was an innocent victim.  He commented adversely on her failure to provide the documents requested in the call-up letter, in particular in relation to financial information.  He added that having checked the position he was satisfied that no documents had been provided in September 2013.  He concluded that the Appellant did not have a proper grasp of her responsibilities as an operator and Transport Manager and commented on the fact that she required all correspondence regarding the licence to be sent to Mark Lyons.  He regarded the number, range and frequency of serious infringements as totally unacceptable.  He concluded that there was no evidence of any adequate system for vehicle checking and defect reporting.  He rejected the submission that the fact that trailers belonged to a third party absolved the Appellant of responsibility.

(xlvii)       Bearing all those matters in mind the Head of the TRU concluded that the Appellant was no longer of good repute, or of appropriate financial standing or professionally competent.  In addition he was satisfied that as a Transport Manager she was no longer of good repute.  He also concluded that the Appellant had not demonstrated that she had satisfactory arrangements for securing compliance with the rules on drivers’ hours.

(xlviii)      Turning to the question of whether any, and if so what, action was justified the Head of the TRU rejected a formal warning, suspension or curtailment on the ground that they would not adequately deal with the severity of the matters raised in the Public Inquiry. He went on, at paragraph 49, to say this:

“In considering the question of whether revocation of the licence in this case is necessary, appropriate and proportionate I have no hesitation in answering in the affirmative because of the nature and extent of the infringements, and that at the date of the public inquiry there was little, if any, evidence that Mrs Lyons had accepted responsibility, addressed the issues or taken infringements seriously.  It is clear to me that Mrs Lyons is, at least, not in effective control of the organisation, either as a director or competent transport manager; or at worst complicit in the attempts to gain competitive advantage through abuse of driver’s hours and tachograph rules and the use of rebated fuel”.

He went on to add that: “there should be no place in the industry”, for those who resorted to illegal means, (such as the use of rebated fuel or breaching the rules on drivers’ hours), in order to cut costs and compete unfairly.  He concluded, taking into account the Appellant’s actions as well as her words, that she could not be trusted to operate compliantly in the future.  In deciding that it was right to put the Appellant out of business he said:

“This operator compromised road safety and fair competition to a serious and extensive degree.  The industry in Northern Ireland must be aware that the practices employed by Mrs Lyons will not be tolerated and must be discouraged”.

(xlix)        The Head of the TRU revoked the Appellant’s operator’s licence with effect from 23.59 on 31 December 2013.  He did so on the grounds that the Appellant no longer satisfied the requirements to be (i) of good repute or (ii) professionally competent.  The front sheet of the decision indicates that the licence was also revoked on the ground that the Appellant no longer met the requirement to be of appropriate financial standing.  In addition he withdrew the Appellant’s Community Licences, disqualified Mrs Lyons from holding or obtaining an operator’s licence for a period of 3 years from 31 December 2013 and disqualified her for the same period from acting as a Transport Manager.

(l)               On 23 December 2013 the Appellant filed a Notice of Appeal.  Three grounds of appeal were advanced.  First, that the Appellant should continue to be considered of good repute, of appropriate financial standing and professionally competent.  Second, that the decision was fundamentally flawed because of the successful appeal against the earlier revocation of the licence and third, that she had been unfairly treated as compared to other operators.

3.         The appeal was listed for hearing, in Belfast, on 20 March 2014.  At 12.35 on 19 March 2014 the Appellant’s Solicitors sent a fax to the Tribunal.  In the third paragraph the Appellant’s Solicitors set out what they described as “a difficulty with regards to tomorrow’s hearing”.  They went on to refer to the papers from HMRC saying that they had been instructed that there was a query which was still being investigated, arguing that it would be “prejudicial and unfair” to rely on such material before the query was resolved.  They added that the Appellant wished to give evidence at the hearing of the appeal and that it would be inappropriate for her to do so before HMRC had completed their investigation.  They requested an adjournment until such time as the query was resolved.  They added that if it was not possible to deal with the matter on 19 March they would make the application at the hearing.  At 15.03 on 19 March the Tribunal replied by email that it had not been possible to contact the Principal Judge, who was on his way to Belfast.  The message continued: “therefore please attend the court tomorrow and make your application to adjourn to the tribunal”.

4.         When the Appeal was called on Mr McGrath appeared for the Appellant, who was not present.  Ms Fee appeared for the Respondent.

5.         Mr McGrath renewed the application to adjourn.  He explained that the Appellant was anxious to give evidence, especially as she had been unable to attend the Public Inquiry.  However she was uncomfortable about giving evidence before HMRC had completed their investigation into the use of illegal fuel.  Mr McGrath was not in a position to be precise about the nature of the outstanding investigation.  The Tribunal indicated that it seemed unlikely to relate to any claim for the return of seized vehicles, given the length of time since the last seizure, but that it was more likely to relate to an unresolved argument about the assessment, (see paragraph 2(xix) above).  The Tribunal indicated that it would be content to leave that matter on one side and review the correctness of the decision on the basis of the remaining evidence.  At this point the Tribunal adjourned to allow Mr McGrath to discuss the position by telephone with his Instructing Solicitor and the Appellant.  When the appeal resumed Mr McGrath informed us that the Appellant would not be attending, that she did not wish to make any further contribution or offer any further evidence and that she was happy for the Tribunal to make a decision on the basis of the evidence in the appeal bundle.  Mr McGrath had no further submissions to make.

6.         Taking into account the approach which Mr McGrath was instructed to take at the hearing and in view of the absence of the Appellant we consider that it would be wrong to limit our review of this decision to the matters raised in the grounds of appeal.  In our view fairness dictates that we should review the decision as a whole to ensure that there are no other points that could have been raised in the course of this appeal.

7.         In particular we take that course because we are well aware that the 2010 Act and the various Regulations made under that Act have only been in force since June 2012 and that appeals from decisions taken by the Head of the TRU are a recent addition to the Tribunal’s jurisdiction.  The Tribunal set out some background information to this jurisdiction in paragraphs 3-10 of the decision in the appeals of: NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI

8.         In order to ‘spread the word’ as quickly and as widely as possible we intend to repeat some of the guidance given in NT/2013/82 Arnold Transport & Sons Ltd v DOENI.  We quote paragraphs 6-13 in full:

“6.  It is important for operators in general and Transport Managers in particular to become familiar with the relevant provisions as soon as possible.  We agree with the Head of the TRU when he said: “The rules for access to the freight industry are there for a reason and must be applied”.  The reason is that they are intended to ensure that Heavy Goods Vehicles are operated safely and responsibly and that operators compete fairly and resist the temptation to ‘cut corners’ as a result of other operators appearing to get away with such conduct.

7.  We are also aware that those instructed to represent operators, whether at a Public Inquiry or on appeal to the Tribunal, face difficulties in the absence of any text book or other guidance as to the meaning of the legislation or as to the relevant considerations which the Head of the TRU and the Tribunal are likely to take into account.  With this in mind we would repeat the point made in the appeal cited in paragraph 5 namely that one of the main purposes of the 2010 Act is to establish a common regulatory regime for the operation of Heavy Goods Vehicles throughout the UK.  In fact it goes further than that because the need for “common rules on admission to the occupation of road haulage operator” throughout the European Community is stressed in the first recital to Regulation (EC) No 1071/2009 of the European Parliament and of the Council (“Regulation 1071/2009”.  While Member States are given some discretion as to some aspects of the Regulation it is clear from the Regulation as a whole that considerable importance is attached to road safety and fair competition.

8.  Many of the provisions in the 2010 Act and in the Regulations made under it are either identical or similar to provisions in the Goods Vehicles (Licensing of Operators) Act 1995, ("the 1995 Act") and the Regulations made under that Act.  There is now a considerable body of Tribunal decisions dealing with various aspects of this body of legislation and, to a lesser extent with the terms of Regulation 1071/2009.  Where the legislation in force in Northern Ireland is identical to a provision in force in Great Britain our view is that Tribunal decisions, whether relating to GB or NI, appeals are equally applicable.  The Tribunal publishes a Digest of its appeal decisions that can be accessed at: Digest

9.  With these considerations in mind we believe that it may be helpful if we deal with some general principles as well as all aspects of this appeal.  The full text of the Acts and Regulations to which we refer in this decision can be found on the internet by a search using the full title of the Act or Regulation in question

Some General Principles

10.  An operator’s licence can only be granted if the applicant satisfies the Department that the relevant requirements, set out in s. 12 of the 2010 Act as amended, have been met. [The expression Department is used in the legislation but for the purposes of the decisions required to be taken under the legislation it is the Head of the TRU who takes them].  The relevant requirements are now set out in Paragraph 17(5) of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012, (“the Qualifications Regulations), which substitutes a new s.12 and adds ss. 12A-12E to the 2010 Act.  The Qualifications Regulations also contain important provisions in relation to Good Repute, Professional Competence and Transport Managers.

11.  The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded.  In our view it is clear both from the terms of the 2010 Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence.  It is implicit in the terms of s. 23, which gives the Department power to revoke, suspend or curtail an operator’s licence, that this can take place at any time and for any reasonable cause, including matters covered by the requirements of s. 12 as amended.  It is explicit in s. 24, which provides that a standard licence shall be revoked if at any time it appears that the licence-holder is no longer (i) of good repute, (ii) of appropriate financial standing or, (iii) professionally competent.  The underlining, in each case is ours.  First, we wish to stress that once it appears that the licence-holder is no longer of good repute, or of appropriate financial standing or professionally competent the licence must be revoked because the Act makes it clear that there is no room for any exercise of discretion.  Second, the use of the expression ‘at any time’ makes the continuing nature of the obligations crystal clear.

12.  The Tribunal has stated on many occasions that operator’s licensing is based on trust.  Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime.  In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field.  In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven.  Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business.  Cutting corners all too easily leads to compromising safe operation.

13.  It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question.  It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute.  It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”.  We agree that this is a helpful and appropriate approach.  The attitude of an operator when something goes wrong can be very instructive.  Some recognise the problem at once and take immediate and effective steps to put matters right.  Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place.  A third group leave it even later and come to the Public Inquiry with promises of action in the future.  A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry.  It will be for the Head of the TRU to assess the position on the facts of each individual case.  However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future”.

9.         With these principles in mind we start with the point raised in the letter from the Appellant’s Solicitor dated 31 October 2013, (see paragraph 2(xxxv) above), which was repeated at the start of the Public Inquiry and again in the Notice of Appeal.  Stating it bluntly the submission was that it was an abuse of process for the Head of the TRU to attempt to revoke the Appellant’s licence on the basis of the grounds and the evidence on which the DVA had failed before a Judge on the earlier appeal.  The DVA took action under s. 29(3) of the Transport Act (Northern Ireland) 1967, (the predecessor to the 2010 Act).  The DVA’s allegation was that as a result of 10 convictions for ‘tachograph offences’ the Appellant was not of good repute.  If the Head of the TRU had called the Appellant to a Public Inquiry under the 2010 Act in order to consider, on the basis of the same 10 convictions and nothing more, whether the Appellant continued to meet the requirement to be of good repute we would have had considerable sympathy with this submission.  However that is not the case here as the Head of the TRU explained at the start of the Public Inquiry.  The first important difference is that while the 10 convictions for tachograph offences still feature in this case there is also a significant amount of additional material that the Head of the TRU was entitled to take into account. Secondly the call-up letter made it clear that the Head of the TRU was considering taking action under s. 23(1) of the 2010 Act, on the basis that an undertaking recorded on the licence had not been fulfilled and under s. 24(1) of the 2010 Act on the ground that the Appellant no longer met the requirements to be (a) of good repute, (b) of appropriate financial standing and (c) professionally competent and, in addition, that the Appellant did not have a Transport Manager who was of good repute and professionally competent.  In short the case that the Head of the TRU had to consider was quite different to the case considered in the course of the first appeal.  We are satisfied that there was no abuse of process in the actions taken by the Head of the TRU and that he was entitled to consider all these matters at the Public Inquiry.

10.      Although it was never expressly stated that the Head of the TRU was not entitled to take into account the 10 convictions on the basis of which the earlier action was taken it may be helpful to deal with that point at this stage. In our view there is an important distinction between the proper enforcement of a regulatory regime, on the one hand, and decisions made on the issues that arise in, for example, a claim for damages for negligence or breach of contract.  In the case of the latter the public interest requires that there should be ‘finality in litigation’, otherwise the courts become clogged up with the same matter being litigated more than once.  In the case of the former the public interest requires that decisions relating to the enforcement of the regulatory regime should be taken on the basis of a full picture of the operator’s conduct, including the operator’s reaction to events.  This principle can be illustrated by comparing two hypothetical operators, both called to Public Inquiries because immediate prohibitions had been imposed on their vehicles, (in other words the condition of the vehicles was such that they could not be moved safely before they were repaired).  Assume that at the Public Inquiry both were given a formal warning and allowed to continue to operate.  If, in due course, both were called to further Public Inquiries, one because of further immediate prohibitions and the other on different grounds, the ability to consider the whole picture would be instructive.  In the case of the operator who had incurred further immediate prohibitions it would appear that that operator was either unable or unwilling to learn lessons from past mistakes or to comply with the requirement to maintain vehicles properly.  On the other hand the second operator would be able to argue that successful steps had been taken to prevent further immediate prohibitions and that, as a result, the Head of the TRU could have confidence that the other problems would be put right, (whether or not that argument was successful would be for the Head of the TRU to decide on the facts of a real case).

11.      In our view the correctness of this approach, in relation to good repute, is confirmed by the terms of Regulation 5(1) & (2) of the Qualifications Regulations which either entitle or require the Department to take into account “any matter”, “any convictions or penalties”, “any other information” and “any material evidence”.  There is no suggestion that this means that a particular piece of information can only be taken into account once.  In relation to prescribed events of which information is required to be given under ss. 7 or 8 of the 2010 Act there is a 5 year time limit, (see s. 23(1)(c) of the 2010 Act), but again there is no suggestion that information can only be used once.

12.      For these reasons we have no hesitation in concluding that the Head of the TRU was entitled to proceed with this Public Inquiry.  His decision to do so did not amount to an abuse of process.  Furthermore he was entitled to take the full picture into account.

13.      The third ground of appeal asserts that the Appellant was unfairly treated as compared to other licence holders and operators.  Further details in support of this ground were promised but they have not been made available to us.  It follows that there is nothing to support this ground of appeal and that we reject it.  In any event appeals such as this almost always turn on their own particular facts.  Since the facts of individual cases vary considerable the prospect of a ground such as this being argued successfully is virtually non-existent.

14.      The next point raised in the grounds of appeal is that the Appellant remained of good repute, of appropriate financial standing and professionally competent.  We will deal with each of these requirements in turn, beginning with financial standing, because the other two points are linked.  It is important to remember that having called an operator to a Public Inquiry at which any of these requirements are under consideration it is for the Head of the TRU to be satisfied that the operator is not of good repute and/or appropriate financial standing and/or professionally competent and/or that the operator’s Transport Manager is not of good repute and/or professionally competent.  We have used the expression ‘and/or’ between the individual requirements because we want to stress that if the Head of the TRU makes any one of these findings and that finding is upheld on appeal the appeal will fail, notwithstanding that the Appellant is successful on other grounds.  This conclusion flows from the opening words of s. 24(1) of the 2010 Act: “the Department shall direct that a standard licence be revoked if it appears to the Department that the licence-holder is no longer of good repute” etc.

Financial Standing

15.      For the purposes of a standard licence the requirement to have appropriate financial standing is to be determined in accordance with regulations and Article 7 of Regulation 1071/2009, see s. 12A(2)(c) of the 2010 Act.  Article 7.1 sets the amount required for the first and each subsequent vehicle in Euros and provides for an annual conversion into Sterling.

16.      For the purposes of the present appeal these provisions required the Appellant to have available £43,200 for the 10 vehicles and 10 trailers authorised under the licence.

17.      The call-up letter required the Appellant to produce, amongst other financial information, original bank statements for the last three months.  In our view that was appropriate because the requirement to have appropriate financial standing cannot be met by evidence that provides a ‘snapshot’ of the operator’s financial position.  What is required is evidence that the average amount available over a period of time, (generally 3 months), is sufficient to cover the amount required by Article 7.1.  The purpose of having appropriate financial standing is to ensure, amongst other things, that vehicles are properly and promptly maintained and that if emergency repairs are needed the money is available to enable them to be carried out. Since the purpose is to ensure that money is available to pay the bills for maintenance and repairs, (amongst other things), it follows that only assets which can be used to pay such bills can be used to satisfy the requirement to have appropriate financial standing.  For more detailed consideration of financial standing see paragraphs 10-27 of the decision in T/2012/17 NCF (Leicester) Ltd.  

18.      In the present case it was accepted on behalf of the Appellant that no financial information had been provided in response to the call-up letter.  The reason given was that the Appellant had provided such information in September 2013 and did not see the need to provide further financial information so soon afterwards.  The Head of the TRU indicated in the course of the Public Inquiry that he would make inquiries about the information that it was claimed that the Appellant had sent.  His decision indicates that nothing was found.  In our view it was unwise on the part of the Appellant not to respond to the request in the call-up letter.  Because the requirement to be of appropriate financial standing is a continuing requirement and because it must be shown to be met over a period of time the Head of the TRU was entitled to have up to date information on which to decide whether or not this requirement was met.  Operators must bear in mind that unless the Head of the TRU can be persuaded to agree to a ‘rehabilitation measure’, allowing time for the requirement to be satisfied, there is no discretion to avoid the consequences of no longer satisfying this requirement, namely mandatory revocation.

19.      Despite the discrepancy between page one of the decision and the terms of paragraph 53 we are satisfied that the Head of the TRU was entitled to revoke the licence on the ground that the Appellant no longer met the requirement to be of appropriate financial standing.  Accordingly this ground of appeal fails.

Good Repute

20.      The provisions in relation to Good Repute are set out in Regulations 5-9 of the Qualifications Regulations.  The scope of the requirement to be of good repute can best be assessed by considering the terms of Regulation 5(1), (in relation to individuals), and Regulation 5(2), (in relation to companies).  Regulation 5(1) permits the Department to have regard to “any matter” but requires it to have regard to (i) any convictions or penalties incurred by the individual or any other relevant person and (ii) any other information which appears to the Department to relate to the individual’s “fitness” to hold a licence.  Regulation 5(2) requires the Department to have regard to “all the material evidence” but, in particular, to (i) any convictions or penalties incurred by the company, company employees or any other relevant person and (ii) any other information as to past conduct on the part of the company or any relevant person if the conduct appears to the Department to relate to the company’s “fitness” to hold a licence.  We have underlined the word ‘fitness’ in both these provisions because it is critical to understanding the breadth of the requirement to be of good repute.  It means, for example, that an operator who cannot be trusted to comply with the operator’s licensing regime is unlikely to be fit to hold an operator’s licence.

21.      In the present case the Appellant’s vehicles were stopped on a number of occasions between August 2009 and September 2011 and tests on the fuel being used indicated the use of rebated fuel, in other words fuel on which the normal rate of duty had not been paid.  In addition to the illegality of this practice it means that the Appellant was cutting her costs and competing unfairly with other operators.  It appears that the policy of HMRC is to impose increasingly severe terms for the return of vehicles found to be using or carrying rebated fuel on the first two occasions on which this occurs.  Their policy thereafter is to refuse to return vehicles seized on this ground.  In July 2010 three of the Appellant’s vehicles tested positive and in January 2011 a further 5 vehicles tested positive.  It appears that on both these occasions the vehicles were returned.  In February 2011 a further vehicle tested positive.  This vehicle was seized and not returned.  The Appellant asked for this decision to be reviewed.  At the conclusion of the review the decision to retain the vehicle was upheld and the reasons include the statement that the Appellant was “the guiding mind” in the day to day running of the business.  Three further vehicles were seized and not returned in June 2011.  The Appellant challenged the legality of one seizure but the Magistrates refused her application for the return of that vehicle.  A further vehicle was seized and not returned in September 2011.

22.      Given the need to negotiate the return of the first two vehicles and given the refusal of HMRC to return four further vehicles it seems to us that the Appellant must have been aware of what was happening.  Nevertheless it took over a year and the loss of five vehicles before the practice ceased.  In our view this raises the question of why it took so long.  We are conscious of the fact that the Appellant has not had an opportunity to provide a full explanation to us.  In that situation we propose to consider three possibilities. 

23.      The first is that there is some innocent explanation for each occasion on which rebated fuel was found in one of the Appellant’s vehicles.  We reject that possibility for these reasons.  First, on the two occasions on which the Appellant applied for the return of a seized vehicle her application was unsuccessful, in other words it would appear that her explanation was rejected.  Second, on several occasions she did not even attempt to secure the return of a seized vehicle.  Third, if there was an innocent explanation for one or more of the early seizures there is no explanation for the fact that the Appellant did not take steps to ensure that it did not happen again.

24.      The second possibility is that the Appellant was aware, after the event, that rebated or laundered fuel was being used but failed to take steps to stop a practice which she had not initiated.  Our concern in this situation would be that the Appellant was either unable or unwilling to put a stop to the practice, notwithstanding the fact that it resulted in the seizure of vehicles required for the business to operate.  In our view any reasonably competent operator, who sought to operate in compliance with the regulatory regime, would have taken firm, immediate and effective steps to ensure that the use of rebated and/or laundered fuel ceased at once. 

25.      The third possibility is that for a period of over a year the Appellant adopted a policy of using rebated fuel and/or laundered in order to reduce her running costs.  In our view this is the most likely explanation.  We have reached that conclusion because we find it difficult to believe that any other explanation accounts for the fact that the practice of using rebated and/or laundered fuel continued for so long and resulted in the seizure of so many vehicles.  It seems to us that if the Appellant had wished to put a stop to the practice she could and should have been able to do so.  In addition other evidence, (to which we will come), suggests that the Appellant was attempting to cut her costs.

26.      It follows, in our view, that the probability is that this is one aspect of what appears to be a deliberate policy on the part of the Appellant to compete unfairly against other operators.  The effect of unfair competition is to put the public at risk because other operators may feel compelled to lower their standards in order to remain in business and may compromise road safety as a result.  In NT/2013/82 Arnold Transport & Sons Ltd v DOENI,  the Tribunal said this at paragraph 16:

“The impact of unfair competition is insidious in that it gradually and subtly undermines the confidence of compliant operators that their competitors will comply with the regulatory regime and thus compete fairly.  What matters is the perception that other operators are competing unfairly not whether they are achieving any benefit as a result.  Once rumours, of unfair competition spread, (or clear evidence of it becomes apparent), the assumption will be made that it must be advantageous because there would be no point in running the risks involved if it was not. It is also corrosive because once rumours of unfair competition, (at the very least), begin to spread the perception that some operators are competing unfairly, (whether or not they profit by doing so), has a damaging effect.  It means that normally compliant operators will feel tempted to ‘cut corners’ in relation to the regulatory regime in order to remain in business.  Some may decide to resist that temptation but others are likely to succumb.  The end result, if swift and effective steps are not taken to stamp out unfair competition, is that the operators who are most determined to remain compliant will be at greatest risk of being put out of business, even though they are the very operators who most deserve to remain in the industry.  Trust, (whether between operators and the Traffic Commissioner or between operators themselves), is all too easily destroyed.  Rebuilding it, if that is even possible, is likely to be a long and slow process”.

In our view this applies equally to an activity such as the use of rebated fuel, which is intended to secure a cost advantage over competitors.

27.      On seven occasions, between September 2010 and June 2013, vehicles operated by the Appellant were found to be under-taxed or wholly untaxed.  The number of vehicles involved and the period of time over which this occurred suggests that this was a deliberate policy rather than an oversight.  While the sums involved may not be that large in the overall context of operating heavy goods vehicles it is a further indication of an operator ‘cutting-corners’ in order to compete unfairly.

28.      According to a letter annexed to Ms Fee’s skeleton argument seven out of the ten tachograph convictions, which provided the foundation for the DVA’s decision to revoke the licence, (later reversed on appeal), related to failure to produce records.  The other three convictions related to a tachograph, which was not properly, calibrated, a failure to make regular checks and causing or permitting a vehicle to be used without recording equipment.  At first sight and taken out of context a failure to produce tachograph records may not appear to be particularly serious.  However it should always provoke the question: ‘why were the records not produced?’  The use of tachographs makes an important contribution to road safety and the safety of the public.  In particular it provides a record of a vehicle’s speed and a check on whether the driver has taken proper rest breaks.  Where failure to produce tachograph records results in a conviction it suggests that there is no innocent explanation for the no-production of the records.  That in turn prompts the question: ‘what is the operator trying to hide?’  In seeking to answer that question we have the advantage of a fuller picture than that available to the appeal Court.  In addition to the offence of using a vehicle with a tachograph that was not properly calibrated, (see paragraph 2(v) above), we also know that the vehicle stopped in April 2011 had had an extra cable spliced into its wiring which would enable an ‘interrupter’ switch to be fitted, (see paragraph 2(x) above).  Fitting such a cable involves a premeditated decision to enable the driver to work more than the permitted hours without taking required rest breaks.  We say that because the only purpose of such a switch is to enable the driver to interrupt the signal, which is sent to the tachograph, and to make it appear that the vehicle is at rest when it is still moving.  That in turn enables the driver to work more than the permitted hours with the attendant risks of loss of concentration and/or falling asleep at the wheel.

29.      Given the picture that has now emerged we take a very serious view of the tachograph offences.  It seems to us that the probability is that the Appellant failed to produce tachograph charts because to do so would have revealed that her drivers were committing offences and, in particular, drivers’ hours offences.  In other words these matters involved a risk to road safety as well as being another example of unfair competition.

30.      We now turn to the question of prohibitions.   In the period between September 2010 and August 2013 a total of seven prohibitions were issued, of which 6 were immediate prohibitions, (in other words the vehicle was not allowed to be moved until remedial action had been taken).  Some of these prohibitions were issued when more than one significant defect was found on the same vehicle on the same occasion.  Two problems featured on more than one occasion.  One was overloading and the other was defective brakes.  On one occasion an overloaded vehicle also had defective brakes.  Overloading and defective brakes present an obvious risk to the safety of other road users.  When such problems persist, as they did in the present case, it inevitably raises the question of whether the operator is either able or willing to improve the situation and to operate compliantly.

31.      One factor that enables an operator to avoid a persistent problem with immediate prohibitions is having enough money to ensure that vehicles are properly inspected, serviced and maintained and that repairs are carried out promptly and effectively.  We have already pointed out, (see paragraph 16 above), that one of the main purposes of the requirement to be of appropriate financial standing is to ensure that operators have enough money available to comply with these obligations.  In the present case there was simply no evidence to satisfy the requirement to be of appropriate financial standing and, in addition, as we have also pointed out it appears that the Appellant was persistently attempting to cut costs in various different ways.  In other words in the absence of evidence to satisfy the requirement of appropriate financial standing it seems to us that it is unlikely that the Appellant will be able, in the future, to operate with properly maintained vehicles.

32.      Other factors that enable an operator to avoid a persistent problem with immediate prohibitions are the ability to learn lessons and develop and utilise the management skills to require employees to change their ways.  In our view it is apparent from the history of this case that the Appellant simply carried on as before with little, if any, attempt being made to put matters right until it was too late.  In terms of road safety it makes little difference whether this was because the Appellant could not afford to maintain and repair her vehicles to the required standard or whether she was unable or unwilling to persuade her employees to change their ways and adopt proper practices, such as effective walk-round checks and defect reporting.  Either way it calls into question her fitness to hold an operator’s licence.

33.      The position in the present case is compounded by the fact that on five occasions when prohibitions were issued there was a requirement that the vehicle in question should undergo a partial MOT test.  There is no evidence of compliance with this requirement on any of these occasions.  We have to say that this demonstrates a degree of contempt for the requirements of the operator’s licensing regime that is not compatible with the degree of trust, which must exist between operators and others involved in complying with or enforcing the operator’s licencing regime.  In the present case there are other examples of a lack of co-operation, which show that the Appellant cannot be trusted to comply.  For example on the first occasion on which the Appellant was required to produce tachograph charts the Appellant never replied despite two reminders.  On the second occasion it appears that she did eventually reply, after two reminders were sent.  However the reply appears to have been very late.  In addition all attempts to arrange interviews with her failed.

Professional Competence

34.      Regulation 10(1) of the Qualifications Regulations makes it clear that the requirement of professional competence falls to be satisfied by an individual.  This is hardly surprising given the provisions of Article 4 of Regulation 1071/2009 which require an undertaking which engages in the occupation of road transport operator to designate at least one natural person, who is of good repute and professionally competent, and who “effectively and continuously manages the transport activities of the undertaking”.  In addition that person must have a genuine link to the undertaking. 

35.      In our view it is clear that the Appellant, (acting as her own Transport Manager, as she was entitled to do), was quite unable to manage the transport activities of her business effectively and continuously.  She failed to put a stop to the use of rebated fuel.  She caused or permitted vehicles to be used untaxed or under-taxed.  She failed to produce tachograph charts on several occasions in circumstances suggesting that she was concealing offences.  She failed to prevent repeated prohibitions for overloading and defective brakes, (amongst other causes) and she did not ensure that vehicles required to undergo partial tests did, in fact, do so.  In our view the combination of these matters inevitably leads to the conclusion that the Appellant is no longer of good repute as a Transport Manager.

36.      Taking an overall view of the evidence in this case we agree with the reasons given by the Head of the TRU, which we have quoted at paragraph 2(xlviii) above.  In particular for the reasons, which we have given, we are satisfied that the Appellant has no proper grasp of her responsibilities either as an operator or as Transport Manager.  In our view, she lacks the insight or determination to change her ways to the extent required if she is to operate compliantly in the future.  In short she is not ‘fit’ to hold an operator’s licence and her overall conduct justifies the conclusion that she is no longer of good repute.  In addition we agree with the conclusion that: “This operator compromised road safety and fair competition to a serious and extensive degree.  The industry in Northern Ireland must be aware that the practices employed by Mrs Lyons will not be tolerated and must be discouraged”.  In our view the final sentence is fully justified by the facts of this case.  This approach has our full support.

37.      It follows that we agree that the Head of the TRU was entitled to conclude that the Appellant was no longer of good repute, of appropriate financial standing or professionally competent and that she had lost her good repute as a Transport Manager.  In our view it was appropriate to disqualify the Appellant from holding or obtaining an operator’s licence.  Given the extent to which she fell short of what it required of those who hold operator’s licences a disqualification for 3 years is certainly not disproportionate.  In view of the findings that, as Transport Manager, the Appellant had lost her good repute disqualification from acting as a Transport Manager was mandatory and a term of 3 years was in no way disproportionate.

38.      For these reasons the appeals against revocation and disqualification are dismissed.  The orders will come into effect at 23.59 on 20 April 2014.

 

 

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.

23 April 2014