Neutral Citation Number: [2014] UKUT 0448 (AAC)

Appeal No.  T/2014/32

IN THE UPPER TRIBUNAL                    

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Miles Dorrington DEPUTY TRAFFIC COMMISSIONER for the West Midlands

Dated 19 April 2014

 

 

 

Before:

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

Leslie Milliken,                                  Member of the Upper Tribunal

John Robinson,                                Member of the Upper Tribunal

 

 

Appellant:

ADRIAN BOOT t/a ABS

 

 

 

                                        

Attendances:

For the Appellant: Mr Boot appeared in person

 

 

Heard at:                         Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing:               13 August 2014

Date of decision:             8 October 2014

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.  The Tribunal’s order will come into effect at 2359 on 12 November 2014.

 

 

 

 

SUBJECT MATTER:-             Restricted Licence   

 

 

CASES REFERRED TO:-    None

 

REASONS FOR DECISION

 

 

 

1.         This is an appeal from the decision of the Deputy Traffic Commissioner for the West Midlands to revoke the restricted goods vehicle operator’s licence held by the Appellant.

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

(i)               The Appellant is the holder of a restricted goods vehicle operator’s licence authorising 3 vehicles, with an operating centre at Wyrley Grove Industrial Estate, Gorsey Lane, Pelsall, Walsall and a correspondence address at 39 Commonside, Norton Canes, Cannock, (when interviewed in September 2013 the Appellant said that he had lived at 89, rather than 39, Commonside for the past 20 years).  The Appellant’s business involves the collection of waste in skips and recycling the collected waste

(ii)              On 25 June 2013 VOSA, (now DVSA), commenced an investigation into the extent of the Appellant’s compliance with EC Drivers’ hours rules and regulations.  This arose from the fact that when a driver, claiming to work for the Appellant, was stopped, it was found that he was not using a tachograph to record driving and other duties.  The vehicle was not specified on the Appellant’s licence, however at the time the Appellant had a margin of 2 vehicles.  In the absence of any tachograph records it was impossible to prove whether it had or had not been used for more or less than 28 days.  The vehicle displayed an identity disc, in the Appellant’s name, which was for another vehicle and had expired on 26 February 2010.

(iii)             The driver of this vehicle was Roy Edward Dawson.  When interviewed he said that he was employed by the Appellant.  He was asked why he was not using a tachograph chart.  He replied that he had been advised by his boss, the Appellant, that he was exempt because he was driving within a 50 kilometre radius.  Hazel Lloyd, the Traffic Examiner conducting the interview, then telephoned the Appellant, at Mr Dawson’s suggestion.  The Appellant said that his drivers were exempt from EC drivers’ hours regulations because he collected from the same commercial property week in week out and fell under the same exemption as a dustcart.  Attempts to discuss this with Mr Boot were frustrated by his constant interruptions.

(iv)            When the vehicle itself was examined on 25 June 2013 12 different defects were found. Five of these defects resulted in immediate prohibitions, six resulted in delayed prohibitions and one merited an inspection notice.  Two of the delayed prohibitions were also ‘S’ marked to indicate a significant failure of maintenance.

(v)             On 9 August 2013 VOSA wrote to the Appellant, at 39 Commonside, requiring him to produce, amongst other things, all tachograph charts or digital tachograph downloads for all vehicles used under the authority of his operator’s licence between 1 May 2013 and 20 June 2013.  The subsequent investigation revealed that, for a number of years, the Appellant had not been using tachograph record sheets, to record driving and other duties carried out by his drivers.

(vi)            On 9 August 2013 a maintenance investigation was commenced.  When the Vehicle Examiner went to the Wryley Grove Industrial Estate it became apparent that the Appellant was no longer using it as  his operating centre.  The Vehicle Examiner was informed that the Appellant had moved to a site off Landywood Lane, Cheslyn Hay, Walsall. 

(vii)           An appointment was made to meet the Appellant on 21 August 2013 so that the maintenance investigation could be carried out.  The Appellant brought safety inspection records for one vehicle, for the required period of 15 months, however he did not bring any other records.  He said that when other vehicles had been sold the records were forwarded to the new owner.  The result of the inspection was unsatisfactory for a number of reasons.  These included the fact that: (i) safety inspections were carried out 6 weekly rather than the stated period of 4 weekly, (ii) there was no written driver defect reporting in place, (iii) the Appellant had failed to inform the Office of the Traffic Commissioner, (“OTC”) of the change in operating centre, (iv) the first time MOT pass rate was poor and (v) an ‘S’ marked prohibition had been issued on 25 June 2013.  The Appellant informed the Vehicle Examiner that he had not been using the registered operating centre for over 12 months but was instead operating from Plot 5 Landywood Lane, Cheslyn Hay, Walsall.  He was advised to inform the Traffic Commissioner of the new address for his operating centre.  In addition to the prohibition issued on 25 June 2013 two other immediate prohibitions and two advisory prohibitions were issued to vehicles operated by the Appellant in the 5 years before the Public Inquiry.

(viii)          On 4 September 2013 the Appellant emailed a response to the maintenance inspection.  He said that he would inspect vehicles every 4 weeks and that he would follow the advice given on most of the other matters.  The exception related to the operating centre.  He said that he was not changing the address of the operating centre adding: “you have the address and all relevant paperwork will be kept at this address”.

(ix)            On 11 September 2013 a vehicle, EY53 HXN, was stopped at the roadside.  The vehicle bore the livery of ‘Rock Hard Concrete’ but was carrying a skip marked ‘ABS Skips’.  An immediate prohibition was issued for one defect and a delayed prohibition was issued in relation to three further defects.  Following a temporary repair the immediate prohibition was lifted.  The driver was the Appellant’s son Nathan Boot who said that he was working for the Appellant for the purposes of the journey.  No current operator’s licence disc was displayed and the vehicle was not linked to any current operator’s licence.  Nathan Boot was asked to produce his tachograph records for that day and the previous 28 days.  He said that he had not driven the vehicle or any vehicle coming within the scope of the EC drivers’ hours rules during the last 28 days.  When the tachograph chart was removed it was apparent that no distance, speed or mode trace had been recorded nor had the centre-field details been completed.  As a result of the failure to complete centre-field details Nathan Boot was issued with a 9 hour prohibition and a £50 Fixed Penalty Notice.  When he was interviewed Nathan Boot confirmed that he was working for the Appellant.  He said that he did not realise that he had to fill in the centre-field details nor did he know that he had to keep details of other work if he was driving within the scope of EC drivers’ hours rules.

(x)             On 26 September 2013 a Traffic Examiner, Adrian Prior, interviewed the Appellant, under caution, who confirmed that he was a sole trader and that his address was 89 Commonside.  When he was asked to explain why the address on his operator’s licence was 39 Commonside he replied that he had lived at number 89 for 20 years.  He confirmed that he was the owner and the operator of the vehicle stopped on 25 June, (see paragraph 2(ii) above), and that, on that occasion, the vehicle was being used in connection with his trade or business.  When the Appellant was asked why the driver of the vehicle on 25 June 2013 was not using a tachograph record sheet he replied: “I haven’t used tachographs for the last 25 years because I thought I was exempt because I do no more than a 5 mile radius and pick up domestic waste from the same properties, household waste”.  The Appellant accepted that the vehicle was not specified on his operator’s licence but said that it had not been used before that occasion.  The Appellant also confirmed that he was the owner and operator of the vehicle stopped on 11 September 2013, (see paragraph 2(vii) above).  He accepted that it was being used, on that occasion, in connection with his trade or business and that his son, Nathan Boot, was the driver.  He said that he did not know that his son had not filled in the centre-field of the tachograph record sheet.  He added that the vehicle was not specified on his operator’s licence because he had only just started to use it.  He accepted that he had received the letter dated 9 August 2013, (see paragraph 2(iii) above) and that he had not produced any tachograph records.  He said: “I thought I was exempt for the last 25 x years, every time I have been inspected or been stopped by VOSA I have explained I am tacho exempt and they have let me on my way because there was nothing wrong with the vehicle”.  When asked where his vehicles were parked the Appellant replied that he was once again parking at Wyrley Grove Industrial Estate.  He accepted that he had been parking them at Landywood Lane but said that it had only been for a few weeks when work was going on at Wyrley Grove.  He said that he did not keep Working Time records for his drivers but that he was now using tachograph charts having accepted the Traffic Examiner’s explanation that he was not exempt.

(xi)            Subsequent investigation of the Appellant’s explanations for not using tachographs showed that there were two occasions on which prohibitions had been issued to drivers of the Appellant’s vehicles.  In each case the prohibition was for not having a tachograph record in use.  These prohibitions were issued on 2 July 2008 to a driver called Darrell Anthony Stokes and on 3 July 2008 to Nathan Boot.

(xii)           On 28 January 2014 the OTC wrote to the Appellant to inform him that the Traffic Commissioner had decided to hold a Public Inquiry to investigate the shortcomings revealed by the maintenance investigation.  The letter went on to set out the specific issues, which the Traffic Commissioner intended to consider, and it summarised the evidence that he would take into account.  It also summarised the powers available to the Traffic Commissioner.

(xiii)          The Public Inquiry and a driver conduct hearing in relation to Nathan Boot, took place on 19 March 2014 before the Deputy Traffic Commissioner.  The Appellant appeared in person.  Nathan Boot, the Traffic Examiner, (Adrian Prior) and the Vehicle Examiner (Neil Brown), were also present.

(xiv)          In the course of his evidence Nathan Boot explained that he had used a tachograph chart so that his wages would be paid.  He said that he had not completed the centre-field because he had been told by his father that the business was ‘tacho exempt’.

(xv)           The Vehicle Examiner then gave evidence in accordance with his statement, which we have summarised above.  He was challenged by the Appellant about the use of the site off Landywood Lane as an operating centre but insisted that this was the case. In response to a question from the Deputy Traffic Commissioner he said that the poor MOT first time pass rate was significant because if an operator could bring a vehicle up to the standard required to pass on an occasion on which he knew that the vehicle was to be tested it must raise questions about the standard of maintenance achieved during the rest of the year.  The Appellant sought to challenge the first time failure rate saying that he was not the person using the vehicle at the time that it failed.  It was pointed out that in each case the vehicle was still recorded against his operator’s licence.

(xvi)          The Traffic Examiner gave evidence in relation to drivers’ hours and tachographs.  His initial evidence is also summarised above.  In answer to the Deputy Traffic Commissioner he said that in the absence of any tachograph records he was not in a position to prove or disprove anything.

(xvii)         When the Appellant gave evidence the Deputy Traffic Commissioner began by asking him about maintenance.  The Appellant insisted that his operating centre had always been at Wyrley Grove Industrial Estate though he accepted that he had told the Vehicle Examiner that his vehicles had been at Landywood Lane.  He added that he “just went and said it” to “throw him”.  He said that he had always had his vehicles inspected at intervals of 6 weeks because he did not realise that the correct interval was every 4 weeks, but added that he had now changed.  He accepted that driver defect reporting sheets had not been used.  He said that he was going to be honest about it and hold his hands up “I’ve just let everything go, right”, because he had had a bad accident in December 2012.  He accepted that the vehicle, which received the ‘S’ marked prohibition, had an awful lot wrong with it, because he had not maintained it.  He said that when he was seen in August 2013 the Vehicle Examiner explained a large number of things that he needed to sort out.  He was asked what changes he had made and replied that it was “just a system, what he’s told me to do”.  He added that once he and the drivers got into the routine it was just “so easy”.  He said that driver defect reporting sheets were being completed and that he was checking them.  Drivers were doing a proper walk-round check, he was using a wall-planner to timetable 4 weekly inspections and he had introduced vehicle specific folders.  He said that he had started to prepare for his CPC, one of the drivers had passed and three others had started or were about to start.  He said that he had been in the industry some time and accepted the suggestion that he might have grown up with some bad habits. 

(xviii)        He agreed that he was so convinced that the nature of his business rendered it exempt from tachograph regulations that he did not initially listen to those who tried to explain that this was no longer the position.  However he said that he now understood, as a result of what the Traffic Examiner had said, that the position changed in 2007 and, as a result, he was now using tachographs, which he checked himself.  He said that his drivers worked five and a half days per week, working Saturday mornings in the yard.  It was pointed out that this meant that the drivers were unable to have a consecutive 45 hour period of weekly rest.  When asked if work in the yard was recorded on the tachograph he replied that it was not because he did not know that it had to be recorded either on the tachograph chart or elsewhere.  He said that he and his son had looked up the rules on drivers’ hours on the computer.

(xix)          At the conclusion of the Appellant’s evidence the Vehicle Examiner was re-called to comment on the documents which the Appellant had brought to the Public Inquiry.  He said that the wall planner was satisfactory and that there were separate ring binders for each vehicle, including copies of laden brake tests, which had been recommended at the maintenance investigation.  Apart from one further suggestion the Vehicle Examiner concluded that the Appellant had made significant improvements.  Turning to MOT tests the Vehicle Examiner said that one of the two vehicles submitted since August 2013 had passed first time while the other failed initially because the windscreen washer “may have run out”.

(xx)           The Appellant was recalled to deal with any additional points, which had occurred to him and to comment on the improvements he had made since the maintenance investigation.  Prompted by his son he said that in relation to drivers’ hours: “we’ll sort that out”.  He said that revocation of the licence would finish the business, which he had had for over 25 years.  The Deputy Traffic Commissioner pointed out that the Appellant would not be able to manage a compliant operation if he did not know the relevant law.  He asked whether the Appellant would be willing to go on a training course to learn about the rules and regulations relating to drivers’ hours and tachographs.  The Appellant said that he was on a course, but the Deputy Traffic Commissioner pointed out that this was the Drivers’ CPC, which did not cover a lot of the things included in an Operator CPC course.  The Appellant agreed that he was prepared to go on a more detailed course.

(xxi)          The Deputy Traffic Commissioner gave a written decision dated 19 April 2014.  He set out the background and the evidence both of which we have summarised above.  He concluded that the Appellant had used an unauthorised operating centre for more than 28 days and that the Traffic Commissioner was not informed.  In making this finding he relied on the evidence of the Vehicle Examiner and what the Vehicle Examiner said that he had been told by the Appellant.  He accepted that it was not possible to prove or disprove the point by reference to tachograph charts.  He concluded that this was a serious breach, pointing out that the use of an unauthorised operating centre is a criminal offence.  In relation to the incident on 25 June 2013, (see paragraph 2(ii) & (iv) above), he said that he was satisfied that, at the time, the vehicle was being used by the Appellant and that the state of the vehicle posed a risk to road safety.  He concluded that there had been a long-standing lack of proper maintenance systems and compliance with maintenance requirements.  He did not accept the assertion that the Appellant was exempt from EU driver’ hours and tachograph rules and regulations because the changes in 2007 were well publicised and they created no exemptions or derogations covering the type of work undertaken by the Appellant.  He also rejected the Appellant’s assertion that VOSA employees, at roadside checks, had confirmed the view that the business was exempt.  He made the point that this was not consistent with the fact that two prohibitions had been issued in July 2008 for failing to use a tachograph.  The Deputy Traffic Commissioner went on to state that the failure to keep tachograph records caused him considerable concern because it meant that there was no way of knowing whether or not drivers were taking the required amounts of daily or weekly rest.  He concluded that as the Appellant did not understand that working a five and a half day week make it impossible to take weekly rest of 45 consecutive hours the probability was that non-compliance with weekly rest was a long-standing problem.  He was critical of the Appellant’s continued lack of knowledge of the basic principles relating to the rules on drivers’ hours and tachographs because it meant that he was unable to ensure compliance with those rules.  He came to a similar conclusion in relation to the Road Transport Working Time Regulations 2005.

(xxii)         Having made those findings the Deputy Traffic Commissioner said that this remained a bad case even after taking into account the changes made since the maintenance investigation, which appeared to have achieved compliance in that respect.  He came to the conclusion that, not-withstanding the improvements made to the maintenance systems, because of the remaining adverse findings it was proportionate to determine that the Appellant had lost his fitness to hold a restricted operator’s licence.  He went on to find that that determination was reinforced by the conclusion that he could not trust the Appellant, in the immediate future, to be compliant in relation to the rules and regulations relating to drivers’ hours and tachographs.  On the basis of those findings the Deputy Traffic Commissioner revoked the Appellant’s restricted operator’s licence, with effect from 2359 hours on 31 May 2014.  The Deputy Traffic Commissioner added that it was also proportionate to revoke the licence on a number of other grounds, which had been raised in the call-up letter.  The Deputy Traffic Commissioner then turned to consider the question of disqualification.  He said that having regard to the fact that the Traffic Examiner, and a colleague of the Traffic Examiner’s, both thought that as the Appellant had not acted dishonestly in what he had done it was not appropriate to disqualify the Appellant.  The Appellant was expressly warned about the consequences of operating without a licence and he was told that any application for a fresh licence was to be placed before the Traffic Commissioner, together with a copy of the decision.

(xxiii)        On 7 May 2014 the Appellant appealed against this decision.  He raised six matters in his grounds of appeal, which we will consider separately.

3.         At the hearing of the appeal the Appellant appeared in person.

4.         In his first ground of appeal the Appellant said that he now realised that at the Public Inquiry he should have been represented by a Solicitor.  While we accept that this might have been advantageous we are not persuaded that lack of representation means that the decision reached by the Deputy Traffic Commissioner was plainly wrong.  In the circumstances of this case it was up to the Appellant to decide whether or not to be represented.  He had a free choice and having decided to act for himself it is not, in our view, open to him to use lack of representation as a ground of appeal.

5.         The second ground of appeal is that at the Public Inquiry VOSA agreed that he was fully compliant in relation to his maintenance system and was now using tachograph charts and that they were happy with the documents, which he brought to the Public Inquiry.  We accept that on the evidence heard at the Public Inquiry this is correct.  However it was only one of the factors, which the Deputy Traffic Commissioner had to take into account. The weight to be given to this evidence was a matter for the Deputy Traffic Commissioner and it is not something on which the Tribunal can interfere.

6.         The third ground of appeal is that the Appellant was misunderstood in relation to drivers’ hours, in that it was the business that worked five and a half days per week rather than the drivers who, in fact, only worked five days per week.  The Appellant went on to state: “I am now fully knowledgeable on drivers’ hours”. 

7.         In relation to the first part of this ground of appeal the Appellant told us that he had misunderstood the question and that as a result he answered in relation to the drivers when the answer actually related to the business.  It seems to us that the evidence was quite clear and that there was no room for any misunderstanding.  We say that because the question giving rise to the relevant answer was: “And how many days a week do your drivers work?”  It goes further than this because the questions which followed on from this answer and, in particular, the answers to those questions make it perfectly clear that the Appellant knew that he was being asked about the work done by drivers not the hours worked by the business.  

8.         In relation to the second part of this ground the position is that the Tribunal is required to review the Deputy Traffic Commissioner’s decision on the basis of the material which was before him at the time that he reached his decision.  In paragraph 17(3) of Schedule 4 to the Transport Act 1985 Parliament makes it very clear that this is the position because that sub paragraph provides that: “The tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal”.  It seems to us that the expression “I am now fully knowledgeable” means that the Appellant accepts that he was not fully knowledgeable at the time of the Public Inquiry but has since acquired the necessary knowledge.  While this is, obviously, to his credit it is not something that we are entitled to take into account on the hearing of the Appeal.  The reason is that knowledge acquired after the Public Inquiry but before the hearing of the appeal is a circumstance that did not exist at the time of the determination the subject of the appeal, so we are not permitted to take this into account.

9.         The fourth ground of appeal is that the Appellant now understands the symbols on a tachograph.  Again it seems to us that this must be knowledge acquired after the Public Inquiry but before the hearing of the appeal.  For the reasons given in the previous paragraph this is not something which we are permitted to take into account.

10.      The fifth ground of appeal is that the Appellant agreed at the Public Inquiry to undertake any courses to prevent revocation but that the Public Inquiry finished without any opportunity to discuss this further.  We accept that the Appellant did offer to attend an Operator CPC course and we accept that this was not subject to any further discussion but we do not accept that these two matters give rise to a successful ground of appeal.  At the hearing of the appeal the Appellant reiterated that until the investigations at the end of 2013 he was of the opinion that the nature of his business meant that the authorised vehicles were exempt from using tachographs.  He said that once he was satisfied that this was wrong he had used tachographs.  It was pointed out that two prohibitions had been issued in 2008 for using an authorised vehicle without a tachograph, which should have indicated that the Appellant’s initial view was wrong.  The Appellant accepted that he failed to take action following these prohibitions.  He also accepted that the vehicle stopped in June 2013 was not using a tachograph and that despite being put on alert he was still not fully aware of the rules and regulations relating to drivers’ hours and tachographs as at the date of the Public Inquiry.

11.      The Deputy Traffic Commissioner came to the conclusion that he could not accept the Appellant’s assertion that he thought that he was exempt from EU driver’s hours and tachograph rules and regulations.  He pointed out that the rules and regulations changed in 2007 and that since then there have been no exemptions or derogations covering the type of transport work undertaken by the Appellant.  He went on to point out that the Appellant’s failure to keep any tachograph records meant that there was no way of knowing whether the people driving his vehicles complied with the requirements for, amongst other things, weekly and daily rest.  The Deputy Traffic Commissioner was clearly unimpressed by the Appellant’s claim, at the Public Inquiry, to be up to date with the relevant rules and regulations.  He referred to the fact that the Appellant was unaware that drivers working for five and a half days per week would be unable to take 45 consecutive hours of weekly rest.  Indeed he took the view that non-compliance with this requirement was likely to have been long-standing in nature.  He also referred to the fact that it became clear at the Public Inquiry that the Appellant did not know the meaning of all the symbols on a tachograph.  He concluded that his ignorance, as at the date of the Public Inquiry, meant that he would not be able to ensure compliance with the rules and regulations on drivers’ hours and tachographs.

12.      In our view these were serious matters, especially because the probability is that the Appellant had been responsible for non-compliance over a lengthy period.  In addition the Deputy Traffic Commissioner concluded that the Appellant had used an unauthorised operating centre for more than 28 days and probably for 12 months, that prohibitions had been issued and that undertakings recorded on the licence had not been fulfilled.  The Deputy Traffic Commissioner clearly took into account the significant progress made by the Appellant in relation to maintenance as well as the fact that he had begun to use tachographs, even if he was not fully conversant with the relevant rules and regulations.  At the end of the day the question is whether the Appellant’s offer to attend a course, coupled with the improvements he had actually made, was sufficient to outweigh the serious and long-standing failures identified by the Deputy Traffic Commissioner.  The Deputy Traffic Commissioner concluded that the adverse factors outweighed the positive factors with the result that the Appellant had lost is fitness to hold a restricted operator’s licence.  We are not persuaded that that conclusion was plainly wrong, in the sense that the process of reasoning, and the application of the relevant law, required the Deputy Traffic Commissioner to adopt a different view.

13.      The sixth ground of appeal is that the Appellant considers it unfair that the Deputy Traffic Commissioner would not trust him when the Vehicle Examiner agreed that he was now compliant.  The short answer to this point is that the Vehicle Examiner agreed that the Appellant had complied with all the suggestions made as a result of the maintenance examination and that he was, at the date of the Public Inquiry, using tachograph charts but he did not go further than that.  The concerns which led the Deputy Traffic Commissioner to revoke the licence arose in relation to other aspects of the case, in particular a long-standing failure to use tachograph charts and a continuing ignorance of the rules and regulations in relation to drivers’ hours and tachographs.  As we have already indicated our view is that the Deputy Traffic Commissioner was entitled to conclude that this long-standing non-compliance and continuing ignorance outweighed the acknowledged improvements which the Appellant had made.

14.      In our view none of the grounds of appeal succeed in showing that the decision to revoke the Appellant’s licence was plainly wrong.  Given that the Appellant appeared in person we have taken an overall view of this case in order to consider whether there is any other point, which might enable the Appellant to succeed.  In our view there is no other point that offers the Appellant any reasonable prospect of success.

15.      It was apparent from the appeal file that the Appellant was granted a stay pending the determination of an appeal.  When we indicated to the Appellant that the only course open to him was to apply for a fresh licence the Appellant told us that he had already done so.  We stressed that in making such an application it would be for him to satisfy the Traffic Commissioner that he met all the relevant statutory requirements.  In particular he will need to satisfy the Traffic Commissioner that he has become familiar with the rules and regulations on drivers’ hours and tachographs and that he will be able to operate in compliance with them as well as continuing to comply with the requirements to keep proper records and to maintain authorised vehicles promptly and properly.  It will be for the Traffic Commissioner to decide whether the Appellant has made sufficient progress to run a compliant operation in the future.

16.      As the law stands there is no requirement for the holder of a restricted licence to have a transport manager.  All operators are expected to have sufficient knowledge to ensure compliant operation.  However, subject to adequate and effective supervision, the holders of standard licences can rely on the transport manager to “effectively and continuously” manage the transport activities of the undertaking.  It seems to us that in the absence of a transport manager it is all the more important that the holder of a restricted licence can demonstrate sufficient knowledge of all the statutory and regulatory requirements necessary to ensure that the business in question operates compliantly.

17.      In order to allow time for the application for a new licence to be determined the order dismissing this appeal will take effect at 2359 on 12 November 2014.  If it becomes apparent that this will not allow sufficient time for that application to be determined it is open to the Appellant to apply to the Tribunal for the date on which the Tribunal’s order takes effect to be extended.  An extension will only be granted if there is a clearly explained case for allowing more time, setting our the reasons for any delay, coupled with an estimate, agreed with the OTC, as to how much longer is needed.

 

 

 

 

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

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

8 October 2014