Neutral Citation Number: [2015] UKUT 0024 (AAC) Appeal No.  T/2014/66

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Fiona Harrington DEPUTY TRAFFIC COMMISSIONER for the West of England

Dated 26 August 2014

 

 

 

Before: Kenneth Mullan Judge of the Upper Tribunal

Mr S. James Member of the Upper Tribunal

Mr M. Farmer Member of the Upper Tribunal

 

 

Appellant: Bridget Burden & Partners

 

 

 

 

Attendances:

 

For the Appellant: Mr David Burden

 

 

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

Date of hearing: 18 November 2014

Date of decision: 19 January 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

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

 

 

SUBJECT MATTER:- Application, Partnership, Disqualified Person

 

 

CASES REFERRED TO:- None

 

 

 

 

 

REASONS FOR DECISION

 

The decision under appeal to the Upper Tribunal

 

1.         This is an appeal from the decision of the Deputy Traffic Commissioner for the West of England dated 26 August 2014.

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

(i)               On 20 June 2014 an application for a Restricted Operator’s Licence was received in the Central Licensing Office (CLO).

(ii)              At section 2(b) of the relevant application form it was intimated that the application was made on behalf of a partnership.

(iii)             At section 5 of the relevant form the details of the partners were given as Mrs Bridget Burden, Mr Graham Burden and Mr David Burden.

(iv)            At section 14(b) a declaration was made that Mr Graham Burden had previously applied for a goods vehicle operator’s licence.

(v)             At sections 14(d), (e) and (f) a declaration was made that Mr Graham Burden had a goods vehicle operator’s licence revoked, suspended, or curtailed in the past, that Mr Graham Burden had previously attended a Public Enquiry before a Traffic Commissioner and that Mr Graham Burden had been disqualified from holding or obtaining an operator’s licence by a Traffic Commissioner.

(vi)            The relevant application form was signed by Mr David Burden.

(vii)           In a referral notice dated 15 July 2014 the following aspects of the application were noted:

-       The advertisement which accompanied the application was worded incorrectly, mentioning 1 vehicle and 2 trailers rather than 2 vehicles and 2 trailers and the circulation for the newspaper was very low at 0.11%;

-       Graham Burden and Bridget Burden had previously held at goods vehicle operator’s licence which had commenced on 24 November 1999 and was authorised for 3 vehicles and 2 trailers. The licence was revoked with immediate effect on 18 January 2011 following the holding of two Public Inquiries;

-       Graham Burden was disqualified pursuant to Section 28 of the Goods Vehicle (Licensing of Operators) Act 1995 (‘the 1995 Act’) from holding an operator’s licence or being an officer of a company that holds such a licence in any traffic area for a period of eight years with effect from 14 January 2011;

-       The Traffic Commissioner had been minded to invoke the same period of disqualification for Bridget Burden but gave her fourteen days from receipt of the decision transcript to make written representations on disqualification. There was no note as to whether such representations had been made;

-        David Burden had made an application for a goods vehicle operator’s licence in January 2011, applying for authorisation for 1 vehicle and 1 trailer. The application had been refused;

-       The licence which was the subject of the present application required funds of £4800. The applicant had provided an original credit card statement in the name of Graham Burden as evidence of financial standing. Although the credit card statement showed access to the required funds, no bank statements had been provided to support the credit card statement;

-       An ECMS case for the impounding of 2 vehicles was on-going with a recommendation of a Public Inquiry. Both applications for the return of the 2 impounded vehicles were dismissed on 18 August 2014;

-       While the applicant had declared that Graham Burden had been involved with a licence that had been revoked, attended a Public Inquiry and had been disqualified from holding or obtaining an operator’s licence, no declaration had been made in connection with Bridget Burden on the previous licence history. Further, the refusal of the application by David Burden had also not been declared.

3.         On 26 August 2014 the Deputy Traffic Commissioner made a decision to the following effect:

‘I find that Mr G E Burden is currently disqualified under section 28 of the Act and a decision concerning an order to like effect concerning Mrs B E Burden remains to be determined by TC Sarah Bell.

The apparent operation of goods vehicles by the partnership and/or Mr Burden following the revocation in 2011 also raises further serious concerns relevant to the repute of Mr and Mrs Burden.

Concerns relevant to the repute of Mr David Burden also arise by reason of the application made by him shortly before the revocation of his parents’ licence in 2011 and a need to ascertain his role in the apparent unauthorised operation of goods vehicles for the benefit of the family business since that application was refused.

I determine that I am entitled to refuse the application under section 28(1)(b) of the Act as the disqualification of Mr Graham Burden under section 28(1) of the Act made by TC Sarah Bell remains in force. By section 28(1)(b) notwithstanding anything in section 13 or 24 no operator’s licence may be issued to Mr Graham Burden and therefore the partnership in this case.

I would note that I am not satisfied that the partnership is not unfit to hold the licence applied for by reason of the previous activities referred to above. Having made these findings I have not gone further to consider the remaining requirements of section 13 of the Act which also remain to be satisfied.

The application is therefore refused under section 28 (1)(b) of the Act. The partnership should be reminded of section 20 (2) of the Act.

 

Mr Graham Burden is advised that he may separately apply to the Traffic Commissioner for consideration of an order under section 28 (6) of the Act. Further if Mrs BE Burden wishes to be involved in operator licensing in future then she is reminded of the concerns and determination of TC Sarah Bell outstanding from 2011. An application by her to the TC to determine the matter of the order under section 20 given the outstanding concerns would therefore seem appropriate to be considered at the same time as any application by Mr Graham Burden under section 28 (6).

Mr David Burden is advised that if an application is duly made by him as a sole trader then he will need to satisfy the TC that this is not a 'front' for the partnership or either of his parents – and deal with the issues of his fitness raised above as well as how he would satisfy the remaining requirements of section 13.

4.         The appellant was notified of the decision of 26 August 2014 by way of correspondence dated 27 August 2014.

The appeal to the upper tribunal

5.         On 17 September 2014 an appeal to the Upper Tribunal was received in the Tribunals Service.

6.         The appellant has set out the following Grounds of Appeal:

'I, David Burden, having not been disqualified from holding an operator’s licence nor having been involved with the partnership or Quantock Farm Machinery during the time that its licence was revoked, will take full responsibility for the operation, maintenance, driver hours and general roadworthiness and legality of all vehicles operated by the partnership if an operator’s licence is granted.

I understand that the Deputy Traffic Commissioner would wish for me to apply for an operator’s licence as a sole trader. However, this does not take into account that the business that I wish to pursue and the future that I see for myself is within Quantock Farm Machinery. Starting from scratch with a separate administrative entity would simply involve me carrying out the same nature of business under a different trading name. Practically, it would change nothing beyond creating a lot of paperwork, stress and hassle with no apparent benefit.

I am not my father. I am not a front or a ruse used by my father to continue operating heavy goods vehicles himself. Although I do rely on my father for advice and help with regards to buying and selling farm machinery, I will oversee and take full responsibility for any heavy goods vehicles operated by the partnership.

7.         As was noted above, Mr David Burden attended the oral hearing of the appeal. During the course of the oral hearing, Mr Burden repeated the grounds of appeal which he had set out in the appeal forwarded to the Upper Tribunal, and as noted in paragraph 6 above. In addition, Mr Burden accepted that the application for the goods vehicle operator’s licence had been made in the name of a partnership. Mr Burden also accepted that Mr Graham Burden and Mrs Bridget Burden were partners in the partnership which had made the relevant application. Mr Burden accepted that he had been advised that he could make an application for a goods vehicle operator's licence in his own name as a sole trader. He was clear, however, that the business that he wished to run was Quantock Farm Machinery. Finally, Mr Burden indicated that, at present, the majority of his business took place in France. He stated that one option which was open to him was to conduct his business from France.

Our analysis

8.         We have no hesitation in upholding the decisions of the Deputy Traffic Commissioner. Her application of the applicable legal rules and principles was wholly accurate. Section 28(1)(b) of the 1995 Act provides:

‘Where, under section 26(1) or 27(1), a traffic commissioner directs that an operator’s licence be revoked, the commissioner may order the person who was the holder of the licence to be disqualified (either indefinitely or for such period as the commissioner thinks fit) from holding or obtaining an operator’s licence; and so long as the disqualification is in force –

…

(b) notwithstanding anything in section 13 or 24, no operator’s licence may be issued to him.’

9.         The application for an operator's licence was made in the name of a partnership. One of the partners was Mr Graham Burden. As was noted above, Mr Graham Burden, together with Mrs Bridget Burden, held an operator's licence which was revoked with immediate effect on 18 January 2011. Further, Mr Graham Burden was disqualified pursuant to section 28 of the 1995 Act with immediate effect from holding or obtaining an operator’s licence or being an officer of a company that holds such a licence in any traffic area for eight years with effect from 14 January 2011. Accordingly, for the purposes of section 28(1)(b) of the 1995 Act, for so long as the disqualification is in force, Mr Graham Burden may not have an operator's licence issued to him.

10.      The Deputy Traffic Commissioner was, in our view, correct to have indicated that she was not required to consider the remaining requirements of section 13 of the Act (or, indeed, section 24).

11.      Mr David Burden may well be correct when he states that he would '… take full responsibility for the operation, maintenance, driver hours and general roadworthiness and legality of all vehicles operated by the partnership if an operator’s licence is granted.' It is axiomatic that the law prevents the grant of an operator's licence to the partnership in the circumstances.

12.      As was noted above, the Deputy Traffic Commissioner, in her decision of 26 August 2014, advised Mr Graham Burden that he might separately apply to the Traffic Commissioner for consideration of an order under section 28 (6) of the Act. There is no indication that Mr Graham Burden has availed of that advice. Further, Mr David Burden has been advised that he might make an application for an operator’s licence in his own name as a sole trader. At all stages, however, Mr David Burden has indicated that he does not wish to make an application as a sole trader

13.      For the reasons which we have set out above, the appeal is dismissed with immediate effect.

 

 

 

Kenneth Mullan, Judge of the Upper Tribunal,

19 January 2015