Neutral Citation Number: [2014] UKUT 472 (AAC) Appeal No.  T/2014/61

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of

Kevin Rooney, Traffic Commissioner for the

North East of England Traffic Area dated 15 July 2014

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

Appellants:

BARRY TREVOR WELCH trading as

NORTH LINCOLNSHIRE TRANSPORT SERVICES

Attendances:

For the Appellant: No appearance

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

Date of hearing: 14 October 2014

Date of decision:   20 October 2014

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED with immediate effect

SUBJECT MATTER:-  Failure to reply to correspondence; breach of licence conditions; good repute

CASES REFERRED TO:-  Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.

REASONS FOR DECISION

1.             This is an appeal from the decision of the Traffic Commissioner for the North East of England Traffic Area (“TC”) made on 15 July 2014 when he revoked the Mr Welch’s standard national licence authorising two vehicles and two trailers with immediate effect under ss.26(1)(b) (conditions), 26(1)(c)(ii); (convictions of servants or agents) and 27(1) (repute) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”).

2.             The factual background to this appeal appears from the following documents and chronology:

a.    The Case Submission collated by the Office of the Traffic Commissioner (“OTC”) in which it is recorded that Mr Welch was granted a standard national operator’s licence in May 2006 authorising two vehicles and two trailers.  He had one vehicle in possession;

b.    A Certificate of Conviction from Grimsby Crown Court which certifies that on 19 October 2012, Mr Welch pleaded guilty to an offence of assault occasioning actual bodily harm and that on 2 January 2013, he was sentenced to 12 months imprisonment suspended for 24 months with a requirement that he complete 200 hours of unpaid work;

c.    A letter dated 6 May 2014 from the OTC addressed to Mr Welch’s correspondence address (as held by the OTC – East Ferry Road, Susworth, Scunthorpe) concerning his failure to notify the TC of the conviction and firstly requiring an explanation for that failure and secondly, requesting the background circumstances of the conviction.  The letter informed Mr Welch that the TC was considering whether to call a public inquiry.  A response was required by 19 May 2014.  Mr Welch did not respond.

d.    Two “propose to revoke” letters dated 29 May 2014 addressed to Mr Welch’s correspondence address (as above) and to his operating centre – C/O BDV Recovery Ltd, Scotter Road South, Bottesford, Scunthorpe.  Each was sent by first class post and recorded delivery.  The letters gave Mr Welsh until 19 June 2014 to respond.  No response was received from him.

e.    Two decision letters dated 14 July 2014 notifying Mr Welch that his licence had been revoked upon the grounds set out in paragraph 1 above, addressed to his correspondence address and to his operating centre;

f.     A letter dated 20 July 2014 to the OTC from Mr Welch requesting a stay of the decision.  Enclosed with the request was a photocopy of a hand written letter dated 2 April 2014, addressed to the OTC notifying a change of correspondence address to Stumbletoft Cottage, Eastoft, Scunthorpe;

g.    A letter dated 30 July from the OTC to Mr Welch which advised him that an application for a stay could not be considered until he lodged an appeal with the Upper Tribunal;

h.    The Notice of Appeal dated 4 August 2014;

i.      A letter from the OTC refusing the application for a stay dated 13 August 2014 without any reasons given for the refusal.

j.      The Upper Tribunal’s decision granting Mr Welch a stay.

3.             At the hearing of this appeal, Mr Welch failed to attend and failed to contact the Upper Tribunal administration office.  At the conclusion of our list at 3pm, we determined that we should proceed to consider and determine Mr Welch’s appeal in his absence.

4.             Mr Welch’s grounds of appeal are that he had not experienced any problems with VOSA (now DVSA) in the past and that his vehicle was always in good condition.  He kept within the law.  He did not know why his licence had been revoked and the first he was aware of any problems was when he received the revocation letter dated 14 July 2014.  He was an owner driver and if he were to lose his licence, he would be out of work and “on the dole”. 

5.             Mr Welch’s operator’s licence was revoked for the following reasons: Firstly, on 19 October 2012, he was convicted (on his own admission) of a serious criminal offence.  The circumstances of that conviction may have an adverse impact upon his good repute and fitness to hold a licence.  Secondly, he failed to notify the TC of that offence as he was required to do under the terms of his operator’s licence.  Thirdly, he failed to reply to the correspondence sent to the correspondence address held for him by the OTC and in relation to the “propose to revoke letter” that letter was also copied to the address of his operating centre.  Mr Welch was duty bound under the terms of his licence to inform the TC of all change of circumstances material to his licence and to inform the TC of any changes to his correspondence address. 

6.             In his letter to the OTC dated 20 July 2014, Mr Welch maintained that he had informed the TC of a change of correspondence address (which is not confirmed by the OTC).  However, that assertion does not begin to answer the concerns of the TC which led to the revocation of Mr Welch’s licence.  His grounds of appeal are silent as to firstly, the circumstances in which he committed a criminal offence.  Secondly, as to why he failed to notify the TC of the conviction.  Thirdly, why he did not answer the “propose to revoke” letter sent to his operator’s centre on 29 May 2014.  Fourthly, if it is the case that he did not receive the letter of 29 May 2014 at all, how he came to be in receipt of the revocation letter - it is of note that in his Notice of Appeal, Mr Welch gave his address as 14 Washinghall Lane, Eastoft, Scunthorpe, which is different from the address held by the OTC and to that set out in his letter of 20 July 2014.

7.             We are satisfied that the TC was more than justified in concluding that there had been a breach of the conditions attached to Mr Welch’s operator’s licence and that s.26(1)(b) was made out.  In the absence of any communication from Mr Welch (either in the form of notification of the conviction or an explanation as to the circumstances behind the conviction), the TC was further justified in concluding that Mr Welch was no longer of good repute (s.27(1)).  We do not find that either the law or the facts of this case impel us to come to a different view to that of the TC as per the test in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.

8.             The revocation letter also cites s.26(1)(c)(ii) as a ground of revocation when that section clearly does not apply.  That sub-section concerns convictions of servants or agents.  In the event that a typographic error had been made in the drafting of the letter, neither does s.26(1)(c)(i) apply as Mr Welch’s conviction for an offence of assault occasioning actual bodily harm does not fall within the provisions of paragraph 5 of Schedule 2 of the Act. Those grounds of revocation are not made out.

9.             The Tribunal granted a stay in this case because DTC Perrett failed to give reasons for refusing a stay.  We were also unimpressed with the call up letter citing grounds for revocation which simply could not have applied in this case.  We were of course satisfied that there did not appear to be any road safety implications in the grant of a stay.  However, the stay decision made it clear to Mr Welch that the best way forward for him (with the assistance of his Transport Manager) was to apply for a new operator’s licence which would inevitably result in a public inquiry during which he could explain his obvious shortcomings and the circumstances of his conviction and give assurances to the TC that he would comply with the terms of a licence in the future.  We trust that Mr Welch did take this course of action.

10.         The appeal is dismissed forthwith and for the avoidance of doubt that means that the stay is no longer in place.

Her Honour Judge J Beech

20 October 2014