Neutral Citation Number: [2014] UKUT 572 (AAC) Appeal No.  T/2014/64

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Kevin Rooney Traffic Commissioner for the Western Traffic Area

Dated 29 July 2014

 

 

 

Before: Kenneth Mullan Judge of the Upper Tribunal

Mr L. Milliken Member of the Upper Tribunal

Mr D. Rawsthorn Member of the Upper Tribunal

 

 

 

Appellant: Alan Michael Knight

 

 

 

 

 

Attendances:

 

For the Appellant: The appellant was represented by Mr Locke of Robert Locke, Solicitors

 

 

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

Date of hearing: 24 October 2014

Date of decision: 18 December 2014

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

SUBJECT MATTER:- Financial standing; loss of repute; professional competence

CASES REFERRED TO:- NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI; Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695; T/2012/17 NCF (Leicester) Ltd

 

 

 

REASONS FOR DECISION

 

The decision under appeal to the Upper Tribunal

1.         This is an appeal from the decision of the Traffic Commissioner for the Western Traffic Area dated 29 July 2014 to (i) revoke the appellant’s licence with effect from 23.59 hours on 30 September 2014 (ii) disqualify the appellant from applying for or holding an operator’s licence in any traffic area for a period of 30 months from 30 September 2014 (iii) having lost his good repute, and disqualifying the appellant from acting as a transport manager in any member state for a period of 30 months from 30 September 2014.  

2.         On 26 August 2014 an application, under section 29(2) of the Goods Vehicle (Licensing of Operators) Act 1995, to stay the decision of the Traffic Commissioner was received in the office of the Traffic Commissioner. On 9 September 2014 the application to stay the decision of 29 July 2014 was granted by the Traffic Commissioner.  

The background to the public inquiry

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

(i)               The Appellant is the holder of a standard international goods vehicle licence authorising the use of twelve vehicles and ten trailers. The licence was granted on 16 October 1998. Ten vehicles are recorded on the operator’s record as being in possession.

(ii)              The Office of the Traffic Commissioner (OTC) received a maintenance investigation report from the Driver Vehicle Standards Agency (DVSA), following a visit conducted by a Vehicle Examiner conducted on 11 October 2013. During the investigation a number of shortcomings were identified and the report was marked ‘unsatisfactory’. The appellant responded to the list of shortcomings, details of which were summarised in the ‘Case Summary’ attached as appendix 1 to the Traffic Commissioner’s decision. 

(iii)             Eight vehicles had been added to the operator’s licence in 2013. Of these, six vehicles, which had been added in March 2013, were previously on another licence which had been revoked.

(iv)            The OTC had also noted that the appellant had failed to surrender a licence and had a conviction, incurred on 22 August 2013 for which he was issued with a fixed penalty notice.

(v)             The Traffic Commissioner noted the following additional information:

-       The appellant was known to the Traffic Commissioner in connection with another licence, having received a warning letter for an overload conviction, a second warning for an unsatisfactory maintenance investigation in 2008 and attending two public inquiries;

-       The first public inquiry was in February 2011 and resulted in the licence being curtailed and an undertaking added to the licence;

-       The second public inquiry was in September 2013. This was due to another unsatisfactory maintenance investigation in May 2012 and the operator attracting nine prohibitions since the previous public inquiry;

-       The public inquiry resulted in the revocation of the licence;

-       The operator was involved in an impounding case involving a Dutch Registered vehicle. The request to remove the impounding was dismissed by the Deputy Traffic Commissioner on 11 July 2013. An appeal against the decision of the Deputy Traffic Commissioner was dismissed by the Upper Tribunal on 6 December 2013.

(vi)            The Traffic Commissioner called a public inquiry which was held on 3 July 2014. The appellant attended the public inquiry accompanied by Mr Locke, his solicitor. DVSA was represented by the vehicle examiner. A partial transcript of the proceedings of the public inquiry is set out in the bundle at pages 325 to 333. That transcript does not amount to a full record of the proceedings of the public inquiry as the majority of the audio recording was inaudible due to interference in the recording. In his skeleton argument, Mr Locke made reference to the absence of a full transcript of the proceedings of the public inquiry.   At the oral hearing of the appeal, Mr Locke referred again to the absence of a full transcript. He indicated, however, that he was content to address the decision as it stood even in the absence of a full transcript. I have noted, in addition, that the Traffic Commissioner has summarised the proceedings of the public inquiry at paragraphs 7 to 20 of the written decision.

The Traffic Commissioner’s decision

4.         The decision of the Traffic Commissioner was in the following terms:

‘The Goods Vehicle (Licensing of Operators) Act 1995 (the “Act”)

Pursuant to findings under Sections 26(1)(h) and 27(1)(a) and 27(1)(b) of the Act the licence is revoked with effect from 23.59 on 30 September 2014.

Under Section 28 of the Act, Alan Michael Knight is disqualified from applying for or holding an operator’s licence in any traffic area for a period of 30 months from 30 September 2014.

Under Schedule 3 of the Act, having lost his good repute, Mr Alan Michael Knight is disqualified from acting as a transport manager in any member state for a period of 30 months from 30 September 2014.’

The Traffic Commissioner’s reasoning

5.         The Commissioner accepted that the explanation given by the appellant that he believed that his sole trader licence would be automatically terminated as a result of the declaration made by the appellant on his application form. The Commissioner found that explanation to be plausible despite there not having been any follow-up and the licence having been renewed on two further occasions. The Commissioner was of the view that it would be wholly inappropriate to make an adverse finding against the appellant when the licence had been renewed on two occasions and the relevant fees taken. Accordingly, the Commissioner found that section 26(1)(b) of the Act, which  permits revocation, suspension or curtailment for breach of a licence undertaking was not made out.

6.         The Commissioner noted that the appellant had a relevant conviction and, as he had notified the Deputy Traffic Commissioner of this within the relevant period, section 26(1)(e) of the Act, regarding the making of a false statement of fact or unfulfilled statement of expectation, was not made out and attached no finding concerning the commission of certain types of offence under section 26(c)(i).

7.         The Commissioner noted that six prohibitions had been issued to the appellant during 2013. He found it unremarkable that there had been no prohibitions prior to that year as the licence had been dormant. The Commissioner determined that section 26(1)(c)(iii) was made out.

8.         The Commissioner determined that the appellant could not demonstrate financial standing between November 2011 and June 2014 but had declared otherwise on the renewal application made in 2013. Accordingly, the Commissioner found that section 26(1)(e), insofar as it related to a failure to declare a change in financial position, constituted the making of a statement which was false, and, was made out.

9.         The Commissioner noted that financial standing is required to be demonstrated over a period of three months and determined that the appellant had only been able to show access to anything near to the required level of finance since 25 June 2014 when a significant deposit was made from an account in his wife’s name. Accordingly, section 27(1)(a) was made out. Section 27(1)(a) mandates the Traffic Commissioner to direct that a standard licence be revoked if at any time it appears to him that the licence-holder no longer satisfies the requirements of section 13A(2). The requirements of section 13A(2) include the requirement that an applicant has appropriate financial standing.

10.      The Commissioner determined that section 26(1)(f) of the Act was made out on the basis that (i) the appellant had failed to ensure that adequate financial resources were available (ii) the appellant had failed to keep vehicles and trailers fit and serviceable and (iii) a fixed penalty notice had been issued to a driver for failing to apply for a replacement digital tachograph driver card and for mode switching offences. This had led the Commissioner to conclude that the rules on drivers’ hours and tachographs had not been observed.

11.      The Commissioner determined that section 26(1)(h) of the Act was made out. Section 26(1)(h) permits revocation, suspension or curtailment on the ground that since the licence was issued or varied there has been a material change in any of the circumstances of the licence-holder that were relevant to the issue or variation of the licence. The Commissioner found that since the licence had been granted the appellant had been granted and then had revoked a good vehicle operator’s licence for a limited company of which he was the controlling mind. A further company of which he was the controlling mind had contravened cabotage rules on a number of occasions culminating in the impounding of a vehicle.

12.      Turning to the question as to whether the appellant retained his repute and professional competence, the Commissioner reminded himself of the requirement to (i) consider all of the material evidence (ii) conduct the necessary balancing exercise and (iii) determine what, if any, regulatory action was appropriate.

13.      The Commissioner, having discounted the failure to submit an application to surrender the licence, thought that there were three issues central to the assessment of the appellant’s repute. The first related to his actions in relation to the limited company. The Commissioner thought that it was not unreasonable for the appellant to form the view that the setting up of a limited company would insulate himself personally from financial risk if his commercial enterprises grew in size. The Commissioner, nonetheless, was concerned at the appellant’s approach to favouring trade creditors over the Crown having determined that the appellant had done so to retain his supplier base. This had enabled ‘…. The taxpayer to pick up the bill for his business failure. That is compounded by the fact that he put in place a pre-packaged sale of the limited company business to himself in such a way that creditors had no effective say in the matter.’

14.      The second issue relating to repute concerned the transfer, during a period of financial difficulty, of a large amount of money from the joint account which he held with his wife to an account in the name of his wife only. The Commissioner found that there was no corroborating evidence to support the appellant’s explanation that the transfer had been undertaken due to concerns about internet banking fraud. More significantly, the Commissioner found that the appellant’s sole trader account had been put into funds adequate to demonstrate financial standing just a few days ahead of the public inquiry. This led the Commissioner to have ‘absolutely’ no confidence that the funds would remain in the sole trader account to be available if required. It seemed to the Commissioner that the appellant was utilising the bank account belonging to his wife to provide the degree of insulation from business risk which had been previously provided by the limited company.

15.      The third issue of concern related to the behaviours of the appellant’s Dutch business ‘Alan Knight Transport BV’. The Commissioner noted that a decision had been made by a Deputy Traffic Commissioner in which she had refused the return of a vehicle which had been impounded for operating without a valid United Kingdom goods vehicle operator’s licence. The impounding had followed 29 separate occasions on which vehicles operated by Alan Knight Transport BV were issued penalty notices for cabotage offences. The decision of the Deputy Traffic Commissioner had been upheld by the Upper Tribunal – T/2013/61 Alan Michael Knight. The Commissioner concluded that what he was ‘… left with is an individual who, as a director of a Dutch company, allowed that company to breach cabotage rules on many, many occasions and only took action, if at all, after a vehicle was seized.’

16.      In properly carrying out the necessary balancing exercise, the Commissioner noted and set out positive factors. Nonetheless, the Commissioner answered the ‘Priority Freight’ question by concluding that it was ‘very unlikely’ that the appellant would, in the future, operate in compliance with the operator’s licensing regime - ‘He will take risks where it suits from a business perspective and compliance will always be low on his agenda.’

17.      Given the conclusion that future compliance was unlikely, the Commissioner determined that this would support an affirmative answer to the ‘Bryan Haulage’ question, namely, whether the conduct was such that the operator should be put out of business. The Commissioner concluded that in the instant case issues of fair competition were paramount – ‘There are many operators who pay their taxes and abide by the rules and the industry rightly expects that those who do not, such as Mr Knight, are expelled.’

18.      The Commissioner determined that, accordingly, the appellant had lost his good repute and that section 27(1)(a) of the Act was made out. It followed that the appellant could, no longer, serve as transport manager and that section 27(1)(b) was also made out.

19.      The Commissioner noted two aggravating features in the case. The first was the clear preference to pay trade creditors rather than the Crown. The second was the sustained period of cabotage abuse by the Dutch business of which the appellant was the controlling mind. This required the putting ‘… down of a marker that says such behaviour cannot be tolerated and I do that by a period of disqualification. A token period, such as 3 or 6 months, would not succeed in providing the necessary period of reflection for this operator and send the correct signal to others. I have considered a lengthy period of 5 years or more. I am led away from that only by Mr Knight’s argument in relation to the failure to surrender this licence which I found plausible.’

The submissions made on behalf of the appellant 

 

20.      Prior to the appeal hearing, a skeleton argument was provided on behalf of the appellant by Mr Locke. At the oral hearing, Mr Locke expanded on the summary points which had been made. We are grateful to Mr Locke for his well-prepared arguments and submissions.

 

21.      Mr Locke set out four grounds of appeal. The first of these was that the decision by the Traffic Commissioner to revoke the sole trader’s licence held by the appellant was unreasonable and unjustified in the circumstances. Mr Locke submitted that the approach by the Traffic Commissioner should be based on concerns over fair competition between operators and compliance with essential statutory regulatory mechanisms. Any determination should not be considered punishment but justified to achieve the regulatory objective of the licensing regime.

 

22.      It was submitted that there was no evidence that the appellant had deliberately evaded his statutory responsibility to notify changes in order to gain an unfair competitive advantage. The failure to surrender the licence was not calculated but was based on confusion on the part of both the appellant and the staff of the Central Licensing Unit. The demise of the limited company was caused by the failure of two main contractors which was beyond the control of the appellant. The appellant had injected his own money to keep the business going and the decision to enter a ‘pre-pack administration’ was based on the advice of the administrator. Undue weight had been placed on the history of unlawful cabotage. The Traffic Commissioner had unreasonably dismissed the evidence of the appellant that he had put in place a system to prevent a recurrence of these problems. The Commissioner had not clarified the contradiction between the evidence of the appellant that his vehicles had been stopped on many occasions with the Commissioner’s own researches that there was only one recorded encounter.

 

23.      The Traffic Commissioner’s conclusions that the appellant was a risk taker and that it was unlikely that he would, in the future, comply with the regulatory regime were unreasonable. On the contrary the appellant was an honest and credible person doing his best in the circumstances and endeavouring to ensure the proper operation of the business. The appellant accepted that invoice factoring was new to him and he misunderstood the basis on which the facility was calculated. It was the case, however, that taking into account the facility, and other accounts, the appellant had access to sufficient funds. Even though funds had been transferred out of a joint account to an account in the sole name of his wife, the appellant considered these funds to be continuously available and capable of being used as and when necessary. The issues of problems with financial standing could have been resolved by the imposition of a financial condition.

 

24.      Mr Locke’s second ground of appeal was that the Traffic Commissioner had failed to give sufficient weight to the appellant’s general record, performance, reputation and enforcement history as an operator of over ten year’s standing when carrying out the balancing exercise.

 

25.      Mr Locke’s third ground of appeal was that the Traffic Commissioner had failed to consider whether the appellant’s conduct was such that he was fit to hold a licence at the date of the inquiry.

 

26.      Mr Locke’s final ground of appeal was that the decision of the Traffic Commissioner to disqualify the appellant from applying for or holding an operator’s licence in any traffic area for a period of 30 months and from acting as a transport manager in any member state for a period of 30 months was unreasonable and unjustified in the circumstances.

 

The proper approach on appeal to the Upper Tribunal

 

27.      In NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI, Upper Tribunal said the following, at paragraph 8 of its decision, on the proper approach on appeal to the Upper Tribunal:

‘There is a right of appeal to the Upper Tribunal against decisions by the Head of the TRU in the circumstances set out in s. 35 of the 2010 Act.  Leave to appeal is not required.  At the hearing of an appeal the Tribunal is entitled to hear and determine matters of both fact and law.  However it is important to remember that the appeal is not the equivalent of a Crown Court hearing an appeal against conviction from a Magistrates Court, where the case, effectively, begins all over again.  Instead an appeal hearing will take the form of a review of the material placed before the Head of the TRU, together with a transcript of any public inquiry, which has taken place.  For a detailed explanation of the role of the Tribunal when hearing this type of appeal see paragraphs 34-40 of the decision of the Court of Appeal (Civil Division) in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695.  Two other points emerge from these paragraphs.  First, the Appellant assumes the burden of showing that the decision under appeal is wrong.  Second, in order to succeed the Appellant must show that: “the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view”.  The Tribunal sometimes uses the expression “plainly wrong” as a shorthand description of this test.’

28.      The Upper Tribunal In NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI was considering an appeal to the Upper Tribunal against a decision of the Head of the Traffic Regulation Unit under the Goods vehicles (Licensing of Operators) Act (Northern Ireland) 2010. There is no doubt, however, that the principles set out by the Upper Tribunal in paragraph 8, are derived from parallel appeals, such as the one in the instant case, where the appeal is against a decision of a Traffic Commissioner under the Goods vehicles (Licensing of Operators) Act 1995 and Regulations made under that Act – see paragraph 4 of NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI.

 

General principles on the operation of the Act and Regulations

29.      At paragraphs 10 to 13  of the decision in NT/2013/82 Arnold Transport & Sons Ltd v DOENI, the Upper Tribunal set out the following general principles in the operation of the legislative provisions in great Britain and Northern Ireland:

‘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”, (see paragraph 2(xxix) above).  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.’

 Our analysis

30.      We have not been satisfied that on the basis of the submissions which have been made on behalf of the appellant that it could be said that the decision of the Traffic Commissioner in the instant case was ‘plainly wrong’.

31.      We begin with the question of financial standing. Section 13A(2)(c) of the 1995 Act provides that an applicant for a standard operator’s licence must be of appropriate financial standing “as determined in accordance with Article 7 of Regulation 1071/2009’. Article 7(1) of Regulation 1071/2009 makes it clear that this is a continuing obligation. If at any time it appears to the Traffic Commissioner who issued the licence that the licence holder no longer satisfies this requirement revocation of the licence is mandatory – see section 27(1) of the 1995 Act.

32.      The purpose of this requirement was set out by the Tribunal in T/2012/17 NCF (Leicester) Ltd , at paragraphs 11 & 12, as follows:

‘11.  Being of appropriate financial standing has always been considered to be a continuing requirement.  In other words it is a requirement that the operator must satisfy for the duration of the licence.  In our view this is now made crystal clear in Article 7(1) of Regulation (EC) No 1071/2009 of the European Parliament and of the Council, (“Regulation 1071/2009”), which provides: “In order to satisfy the requirement laid down in Article 3(1)(c), an undertaking shall at all times be able to meet its financial obligations in the course of the annual accounting year”.

12.  The purpose of the requirement to be of appropriate financial standing is spelt out, in general terms, in recital 10 to Regulation 1071/2009, which provides: “It is necessary for road transport undertakings to have a minimum financial standing to ensure their proper launching and administration”.  In our view ‘administration’, for the purposes of this Regulation, means the organisation and running of a haulage business which holds an operator’s licence.  In particular the requirement is intended to ensure that vehicles can be operated safely because the operator can afford to maintain them promptly and properly.’

33.      The requirement to be of appropriate financial standing cannot be satisfied by evidence of a ‘snapshot’ of the financial position on a particular day.  What is required is evidence that enough money is consistently available to satisfy the requirement. Because this is a continuing requirement the generally accepted position is that with an existing business the expected average amount available, over a period of three months, should equal or exceed the amount required for the number of vehicles authorised. With specific and limited exceptions assets, (using the term widely), put forward to meet the requirement to be of appropriate financial standing must be owned by and in the name of the operator.

34.      In the instant case, the Traffic Commissioner concluded that the appellant did not satisfy the ‘financial standing’ requirement. The principal basis for that conclusion was that the appellant was only able to show access to anything near the required level of finance since 25 June 2014 when a significant deposit was made from an account in his wife’s name. Prior to that deposit being made the appropriate level of finance, said to be ‘continuously available and capable of being used as and when necessary’ were certainly not in an account which was owned by and in the name of the operator/appellant. The appellant submitted that the transfer of monies which had been in a joint account with his wife had been effected because of concerns around internet banking fraud. The Traffic Commissioner was not convinced by the appellant’s evidence in that regard.

35.      The Traffic Commissioner was also concerned about the manner in which the appellant had conducted his limited liability company. While accepting that the creation of limited liability was an acceptable commercial strategy designed to protect against business risk as commercial enterprises grow in size, the Commissioner was disturbed at the manner in which the appellant favoured trade creditors over the Crown to the extent that the percentage amounts owed to the Crown creditors on the business failure was close to 90%. The Commissioner determined that the appellant had an ulterior motive in favouring creditors in this way and that this went to his financial standing and repute. Further he determined that the more recent manipulation of the bank accounts, including the use of the exclusive account of his wife was equally designed as a business ruse.

36.      We are wholly satisfied that the decision of the Traffic Commissioner that the appellant no longer satisfied the ‘financial standing’ requirements was one which the Commissioner was entitled to make. On the basis of all of the evidence which was before him it was rational and cogent. The decision is in keeping with all of the principles which we have set out above. In these circumstances the revocation of the licence was not optional but was mandatory. Accordingly, the appeal to the Upper Tribunal must fail on this ground alone. Indeed, it is arguable the ground advanced on behalf of the appellant does not challenge the Traffic Commissioner’s finding that the appellant did not have appropriate financial standing.

37.      We have considered the submissions made by Mr Locke on behalf of the appellant that the decision of the Traffic Commissioner was unreasonable and unjustified; that the Commissioner had not properly weighed the conflicting issues going to repute and had failed to balance the appellant’s overall record, performance, reputation over a period of time against a series of administrative aspects of the business which, although could have been handled better, did not negate the appellant’s credibility and honesty and who was endeavouring to ensure the proper operation of his business.

38.      Once again we are wholly satisfied that the decision of the Traffic Commissioner in this regard could not be said to be ‘plainly wrong’. The Traffic Commissioner set out the principles on which the balancing exercise had to be undertaken. He reminded himself that he had to take into account all of the material evidence. He was aware of the principles derived from the relevant case law.

39.      The Traffic Commissioner’s decision was balanced and clear. He found that certain grounds within the legislation were not made out or that if they were then little or no weight should be attached to them. The findings of fact are all wholly sustainable on the evidence which was before him. He set out the positive features of the case. The three issues which he found to be central to the appellant’s repute could not be argued against and are, in our view, of greater significance, than is submitted on behalf of the appellant. We have dealt with the issues of financial standing above. It has been submitted on behalf of the appellant that the Traffic Commissioner placed undue emphasis on the history of unlawful cabotage. With respect to that submission we cannot accept it. The ‘cabotage’ issue was dealt with by the Traffic Commissioner in considerable detail at paragraph 31 of the decision. The history was significant with the impounding following no fewer than 29 separate occasions on which vehicles operated by the appellant’s Dutch company were issued with penalty notices for cabotage infringements. Such a history could not be dismissed or ignored by the Traffic Commissioner. It was, in our view, set in the proper context of the issues which the Commissioner had to determine.

40.      We refer, once again as to what was set out by the Upper Tribunal in paragraph 12 of the decision in NT/2013/82 Arnold Transport & Sons Ltd v DOENI. The scheme for the licensing of operators is based on trust. Those responsible for the operation and regulation of the scheme must be able to trust those who hold operator licences. In turn, operators must be able to trust each other to comply with the scheme, and, more importantly, not to compromise or manipulate the scheme to gain an unfair competitive advantage in an uncompromising commercial sector. What requires, above all, to be avoided is the impinging of public safety through unprincipled commercial practices.

41.      This appeal is, accordingly, dismissed.

 

 

 

 

Kenneth Mullan, Judge of the Upper Tribunal,

18 December 2014