Neutral Citation Number: [2015] UKUT 446 (AAC) Appeal No: T/2015/18

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF MS SARAH BELL,

TRAFFIC COMMISSIONER for the WEST 0F ENGLAND TRAFFIC AREA,

DATED 29 DECEMBER 2014

Before:

Judge M Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.

Mr M Farmer, Member of the Upper Tribunal.

Mr D Rawsthorn, Member of the Upper Tribunal

Appellant

METER SPORT LTD

Attendance

For the Appellant: No attendance by or on behalf of the appellant

Appeal heard at: Field House, Breams Buildings, London

Date of hearing: 18 June 2015

Date of decision: 29 June 2015

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal be dismissed

Subject Matter

Professional Competence. Duty to keep the Traffic Commissioner informed of material changes. Propose to revoke.

Cases referred to

None.

REASONS FOR DECISION:

Background

1)    This was an appeal from the decision of the Traffic Commissioner for the West of England Traffic Area made on 29/12/2014, when she revoked the appellant’s standard national goods vehicles operators licence (which authorised 3 vehicles and 2 trailers) under Section 26(1)(f), 26(1)(h) and 27(1)of the Goods Vehicles (Licensing of Operators) Act 1995.

2)    The appellant company has a sole director, Mr Wood, and a nominated operating centre in Salisbury. Until May 2014, its Transport Manager was Mr J W Smith.

3)    In May 2014, the Traffic Commissioner’s office received a request for Mr Smith’s name to be removed as Transport Manager. However, the operator failed to nominate a replacement. Consequently, the Traffic Commissioner’s office wrote to the operator requesting that this information be provided by 5 July 2014. No response was received.

4)    A further request for the nomination of a replacement was made by post and recorded delivery. Again, no alternative nomination was made.

5)    On 18/11/2014 the Traffic Commissioner’s office wrote to the operator proposing to revoke the operator’s licence on the grounds that it had failed to comply with its undertakings, that there was a material change in circumstances, and that the operator no longer had professional competence. This ‘propose to revoke’ letter was sent by first class post and recorded delivery. The recorded delivery letter was returned with the message: “We were unable to deliver item on 19/11/14 as the addressee refused to accept it”.

6)    Upon the expiry of the 21 days set out in the letter (i.e. by 9/12/2014), the Traffic Commissioner’s office had not received any response and, in particular, no nomination of a new transport manager or any explanation as to what was happening.

7)    On 23/12/2014 the Central Licensing Office in Leeds received a letter from Mr Wood (dated 13/12/2014), stating that he had stayed in France due to the serious illness of his father. He asked that “renewal paperwork” be sent to an address in France, or to an email address. No doubt because of the Christmas break, this letter was not forwarded to the Traffic Commissioner’s office in time to reach her before her decision of 29/12/2014 but, in any event, it did not nominate an alternative Transport Manager or explain what was happening to the business in Mr Wood’s absence. Given that the appellant company had not kept the Traffic Commissioner’s office informed, that there was clearly a material change, and it had been without a nominated Transport Manager (without any period of grace) since May 2014, the Traffic Commissioner decided to revoke the licence.

Appeal to the Upper Tribunal

8)    In the appellant’s grounds of appeal dated 9/3/2015, Mr Wood states that he has been in France for the last 3 years. His father had passed away in June 2014. Mr Wood said that he ceased trading whilst in France, and he had asked that paperwork be sent to him there. He said that he now wished to restart trading and appoint a new Transport Manager.

9)    On 16/6/2015, the Upper Tribunal received an indication from Mr Wood that he was still in France and would not be attending the hearing before the tribunal. Mr Wood contends that there has been a lack of communication “on both sides”.

Tribunal’s Conclusions with Reasons

10) The tribunal considers that the Traffic Commissioner’s decision was inevitable on the facts. Indeed, had the Traffic Commissioner been informed that the sole director had been out of the country – albeit for reasons with which we sympathise – we are certain that action would have been taken sooner. It was for the appellant to ensure that the Traffic Commissioner’s office was kept informed and that the operator had a Transport Manager in post. We have seen no evidence of any communication with the Traffic Commissioner’s office save for the letter from Mr Wood received from France on 23/12/2014. By that time it was too late and, even then, no Transport Manager was nominated. We are also sure that had the Traffic Commissioner’s office received any earlier communication, whilst it was pursuing the issue of the Transport Manager, it would have sought further clarification – especially if there had been any indication that there was no operating establishment in the UK. In the circumstances, we are satisfied that the Traffic Commissioner’s office followed the ‘propose to revoke’ procedure correctly, writing to the correct address in the UK.

11) The appeal is dismissed. If Mr Wood wishes to re-establish himself in the UK, he needs to make a fresh application, and he must demonstrate that he satisfies all the requirements of the law, including the presence of a stable establishment and use of an acceptable operating centre in the UK, the nomination of a suitable Transport Manager, and satisfactory financial standing.

Judge Mark Hinchliffe, DCP

29 June 2015