Neutral Citation Number: [2015] UKUT 25 (AAC) Appeal No.  T/2014/67

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Anthony Seculer Deputy Traffic Commissioner for the Welsh Traffic Area

Dated 03 September 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: Karen Elizabeth Jones t/a J & K Transport

 

 

 

 

 

Attendances: The Appellant was not present or represented

 

 

 

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 ALLOWED.

 

SUBJECT MATTER:- Operating Centre, Conditions

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 Welsh Traffic Area dated 03 September 2014 to grant an Operator’s Licence but subject to seven conditions, as follows:

‘(i) There will be no operation or movement of the authorised vehicle and trailer at the operating centre before 6.00 and after 18.00 Mondays to Saturdays and there shall be no operation or movement of the authorised vehicle or trailer at the operating centre on Sundays and Public Holidays.

(ii) There will be no more than 4 movements into/out of the operating centre of the vehicle and trailer authorised under the licence in the course of a day (defined as midnight to midnight) Monday to Saturday.

(iii) There will be no maintenance (other than emergency steps to regain legality for use on the road) within the operating centre, of the vehicle and trailer authorised under this licence, outside of the hours 06.30 to 18.00 Mondays to Saturday, with no such maintenance at all on Sundays or Bank/Public Holidays.

(iv) There will be no loading/unloading of the vehicle and trailer authorised under this licence at the operating centre.

(v) The vehicle and trailer authorised under this licence will not enter or leave the operating centre in a loaded condition.

(vi) The vehicle and trailer authorised under this licence, when leaving the operating centre, will enter the A4059 by turning left.

(vii) Any breach of these conditions as a result of an emergency must be notified to the Traffic Commissioner in writing within 48 hours detailing the reasons. ‘Emergency work’ is defined as work which is sporadic in nature, not pre-booked and not requested more than 24 hours in advance of when the vehicle needs to be used. In all circumstances of when this exception is used a full written record of when the work was requested and why, including the nature of the work must be made. Such records to be kept for six years and to be made available, on request, to DVLA or the Traffic Commissioner.’

The appeal to the Upper Tribunal 

 

2.         In correspondence dated 15 September 2014, and date-stamped as having been received in the Tribunals Service on 18 September 2014, the appellant gave notice that she wished to appeal to have the ‘environmental conditions’ which had been applied to the grant of her operator’s licence ‘reconsidered’. The appellant noted that she had applied for her operator’s licence in February 2014 and had been granted an interim licence in April 2014 without any conditions attached. She submitted that she understood that there had been no objections or representations to the granting of the licence or to the suitability of the operating centre, at that time. She added that she had been operating without restriction for a period of five months and was now surprised to find that seven conditions had been attached to the licence. The appellant submitted that she believed that the basis for the application of restrictions arose from a complaint made some ten years previously. She noted that circumstances had changed since then and that it would be unfair to apply the same restrictions without further grounds to support them.

 

3.         The appellant submitted that she only objected to two of the conditions which had been imposed on the licence, namely conditions 1 and 3. She noted that condition 1 restricted the movement of vehicles before 06.00 and after 18.00 and with no vehicle movements on Sundays. The appellant referred to a contract which she had with a quarry company which, on occasions, opened its premises before 06.00 and which expected franchisees to comply with these arrangements. Inability to comply would result in a loss of business. The appellant also noted that while Sunday and night work was extremely rare she would wish to have the opportunity to accept such work, if offered.

 

4.         In connection with condition 3, the appellant noted that it would be on an infrequent basis that maintenance work would be undertaken on a Sunday or a Bank Holiday but she wished to have the flexibility to have such work undertaken should the need arise. In turn, this would enable the vehicle to be utilised for business on a Saturday.

 

5.         Finally, the appellant added that she had a very good working relationship with the residents living near the operating centre and was of the belief that any change to the conditions imposed on her licence would not cause upset to members of the public.

 

6.         On 19 September 2014, the clerk to the Upper Tribunal wrote to the appellant acknowledging receipt of the correspondence dated 15 September 2014 but indicating that the appeal would have to be lodged utilising Form UT12 TC. On 25 September 2014 a completed Form UT12 TC was received in the office of the Upper Tribunal. The grounds of appeal set out by the appellant in the completed Form UT12 TC mirror those which she set out in her correspondence of 15 September 2014. In addition she noted that her own business is located next door to another operating centre from which more vehicles operated and yet which operator’s licence was not subject to any conditions. She added that the conditions had the potential to have serious financial implications for her business. The appellant submitted that she was content to abide by all of the other conditions imposed on her licence but wished to continue with her appeal against conditions 1 and 3.

 

7.         In correspondence dated 7 November 2014, the appellant indicated that, due to family commitments, it was not feasible for her to attend an oral hearing of her appeal in London. She requested that the appeal proceed in her absence and stated that the documentary submissions which she had provided set out the basis upon which she wished to appeal against the two relevant conditions attached to her operator’s licence.

Our analysis

8.         We are satisfied that the appeal should be allowed and that conditions (i) and (iii), as noted in paragraph 1 above, should be removed. Our reasoning is as follows. We have noted that the application was advertised correctly and no environmental representations were received from any person who might have been affected by the grant of the licence. There was no evidence of a recent site inspection by a Traffic Examiner nor was a copy of a report of a previous site visit provided. The original environmental conditions applied to a previous licence and are ten years old and it appears from the documentation which is available to us that these conditions were automatically included with the full licence, in a paper-based exercise, without any further apparent justification than they were relevant some ten years previously. There are no road safety issues arising from the relief sought by the appellant. The remaining conditions provide significant controls over the operator’s use of the centre. There are two other operators in the same vicinity with operators’ licences authorised for more vehicles but with no environmental conditions attached. The appellant has been operating on an interim licence with no environmental conditions for a period for five months and no representations or complaints were received during this time. 

9.         This appeal is, accordingly, allowed. The appellant, in her appeal to the Upper Tribunal, sought to appeal against the inclusion of conditions (i) and (ii) to the grant of her operator’s licence, as set out in paragraph 1 above. The effect of this successful appeal is to remove those conditions from her operator’s licence.  

 

 

 

 

Kenneth Mullan, Judge of the Upper Tribunal,

19 January 2015