Appeal No.  NT/2015/05

IN THE UPPER TRIBUNAL                   

ADMINISTRATIVE APPEALS CHAMBER (Transport)

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of the DEPUTY HEAD of the TRANSPORT REGULATION UNIT

Dated 24 December 2014

 

 

 

Before:

Kenneth Mullan            Judge of the Upper Tribunal

Mr George Inch                        Member of the Upper Tribunal

Mr John Robinson       Member of the Upper Tribunal

 

 

Appellant:

Raymond Pedlow t/a Pedlow Engineering

 

 

                                        

Attendances:

For the Appellant: The appellant was not present and was not represented

 

For the Respondent: Ms Fee, BL, instructed by the Departmental Solicitor’s Office

 

 

Heard at:                         Tribunal Hearing Centre, Royal Courts of Justice, Belfast.

Date of hearing:               2 July 2015

Date of decision:             15 September 2015

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

SUBJECT MATTER:-                       Restricted licence application; publication of notice of application; prescribed time limits

 

 

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; 2003/169 Project 2000 Europe Limited; J2003/120 JCM Print Services Limited

 

 

REASONS FOR DECISION

 

 

1.         This is an appeal from the decision of the Deputy Head of the Transport Regulation Unit, (“Deputy Head of the TRU”) to refuse the Appellant’s application for a goods vehicles operator’s licence.

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

(i)               An application for a restricted goods vehicles operator’s licence was received in the office of the Transport Regulation Unit of the Department of the Environment for Northern Ireland on 27 October 2014.

(ii)              On the application form, the Appellant declared that he had no previous licence application history.

(iii)             At section 18 of the relevant application form, a box had been ticked opposite a statement that the Appellant had ‘… provided the whole page of the newspaper for each advertisement I have placed. The date and full title of the newspaper are shown on the page holding my advertisement.’

(iv)            As was noted in the ‘New Application Referral’ document, which set out the chronology of the adjudication process within the TRU;

‘The application was submitted with an advertisement which had been clipped from the newspaper and, as such, the name and date of the publication was unknown.’   

(v)             Attached to the copy of the application form which is in the papers before us is a copy of the advertisement which is referred to in paragraph (iv) above. It is clear that it is, in fact, a ‘clipped’ advertisement rather than a copy of the whole page of the newspaper and makes no reference to the date and full title of the newspaper from which it had been ‘clipped’. 

(vi)            On 5 November 2014, a caseworker from the TRU wrote to the Appellant acknowledging receipt of the application. The caseworker also made a request for certain supporting documentation including the following:

‘Please forward your original full newspaper publication which confirms the date of your publication and the name of the newspaper your advertisement was published in. This information is needed so we can verify the acceptability of your publication.

Adverts must be placed in a newspaper which circulates sufficiently around the vicinity of the operating centre to allow local residents and authorities the opportunity to make representations.’

(vii)           The Appellant was also advised by the caseworker that should the chosen newspaper be deemed to be unsuitable then he would have to re-advertise by a particular date.

(viii)          A reply was received from the Appellant on 19 November 2014. In connection with the request for a copy of the original full newspaper publication which confirmed the date of publication of the relevant advertisement and the name of the newspaper the advertisement was published, the Appellant supplied a photocopy of page 43 of the ‘Lurgan Mail’ of 2 October 2014. It is clear that the ‘clipped’ advertisement which the Appellant had attached to his application form was taken from the full page advertisement which was subsequently provided.

(ix)            By way of correspondence dated 24 December 2014 the Appellant was advised that his application for a goods vehicle operator’s licence had been refused. The reason given for the refusal was a failure to adhere to the requirements of section 10(2) of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010.

(x)             On 12 January 2015 an appeal against the decision dated 24 December 2014 was received in the office of the Upper Tribunal.        

 

3.         The Appellant set out the following grounds of appeal:

‘Having fulfilled all other criteria for the operator’s licence, it was refused due to the fact that a member of Pedlow Engineering’s clerical staff believed the window to be 21 working days in which the application was to be received after advertisement, not 21 days. The application was advertised as requested and no objection made.

I feel that to have to submit an entirely new application on this ground would be costly and unfair.’   

 

4.         As was noted above, the Appellant did not attend the oral hearing of the appeal.

 

5.         At the oral hearing, the Respondent was represented by Ms Fee BL. Ms Fee had prepared a Skeleton Argument for which we were grateful. Ms Fee submitted that the proper test to be applied on appeal was that set out by the Court of Appeal for England and Wales in Bradley Fold Travel Limited & Peter Wright v Secretary of State for Transport ([2010] EWCA Civ 695). Having set out the provisions of section 10 of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010, Ms Fee submitted that:

 

‘The application for a new licence was made on 27^th October 2014 and the advertisement ought to have been published either on or after 6^th October 2014 or on or before 17^th November 2014.

Instead, the advertisement was published on 2^nd October 2014.

The Department has no discretion under Section 10(1) and shall refuse the application for a licence, unless satisfied that the conditions in Section 10(2) have been complied with.

There is a discretion in Section 10(3) where the advertisement varies in form or content from that prescribed, however, this discretion does not extend to the failure by the applicant to publish the advertisement within the prescribed time period.

The Department submits that the appeals of Project 2000 Europe Limited 2003/169 and JCM Print Services Limited 2003/120, apply, which held that the Act did not allow the Traffic Commissioner any discretion to grant an application with an advertisement outside the time period.’

 

6.         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.’

7.         At paragraph 4, the Upper Tribunal had stated:

 

‘It is apparent that many of the provisions of the 2010 Act and the Regulations made under that Act are in identical terms to provisions found in the Goods Vehicles (Licensing of Operators) Act 1995, (“the 1995 Act”), and in the Regulations made under that Act.  The 1995 Act and the Regulations made under it, govern the operation of goods vehicles in Great Britain.  The provisional conclusion which we draw, (because the point has not been argued), is that this was a deliberate choice on the part of the Northern Ireland Assembly to ensure that there is a common standard for the operation of goods vehicles throughout the United Kingdom.  It follows that decisions on the meaning of a section in the 1995 Act or a paragraph in the Regulations, made under that Act, are highly relevant to the interpretation of an identical provision in the Northern Ireland legislation and vice versa.’

 

8.         Section 10 of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010 provides:

 

‘Publication in locality affected of notice of application for licence

 

10—(1) Subject to subsection (3), the Department shall refuse the application without considering the merits unless it is satisfied that subsection (2) has been complied with.

 

(2) This subsection has been complied with in respect of a locality affected by an application if, within the period beginning 21 days before the date on which the application is made and ending 21 days after that date, notice of the application in such form and containing such information as may be prescribed has been published in one or more local newspapers circulating in the locality.

 

(3) The Department is not required by this section to refuse an application if—

 

(a)           it is satisfied as mentioned in subsection (1), except only that the form or contents of the notice of application as published in any newspaper did not comply with the prescribed requirements, and

 

(b) it is satisfied that no person's interests are likely to have been prejudiced by the failure to comply with those requirements.

 

(4) For the purposes of this section a locality is affected by an application for an operator's licence if it contains any place that will be an operating centre of the licence-holder if the application is granted.’

 

9.         Ms Fee is correct in her submission that no discretion is offered by sections 10(1) and (2). It is clear that refusal of an application for a goods vehicle operator’s licence is mandatory under sub-section (1) where the Department is satisfied that the requirements of sub-section (2) have not been met. The requirements in sub-section (2) relate to the publication of notice of the application in one or more local newspapers within prescribed time limits. The language used in sub-section (1) is clear. It provides that the Department ‘shall’ refuse the application. If a discretion was to be afforded then the word ‘may’ would have been used.

 

10.      There is a discretion offered in sub-section (3) but it is not relevant here. It relates to advertisements that, inadvertently, do not comply with the prescribed requirements in form and content and where the Department is satisfied that no person’s interests are likely to have been prejudiced by the failure to comply with the requirements.  

 

11.      In Project 2000 Europe Limited (2003/169) the Transport Tribunal was considering section 11 of the Goods Vehicles (Licensing of Operators) Act 1995 which is in identical terms to section 10 of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010. The Tribunal stated, at paragraph 3:

 

‘3.        Upon the hearing of this appeal, it was Mr Richardson’s case firstly, that he had been unfairly treated in that his advertisement was only one day late and that the Traffic Area had refused his application but had retained the application fee of £168.  We have considerable sympathy with Mr Richardson but we cannot accept his submission.  S.11 is clear in its terms: the Traffic Commissioner shall refuse an application without considering the merits unless s.11(2) has been complied with.  S.11(2) requires an applicant to publish a notice of the application in a local newspaper within the period of 21 days before or 21 days after the date of the application.  The Act does not give the Traffic Commissioner any discretion to allow an advertisement outside this time period.  This is to be contrasted with the discretion given to the Traffic Commissioner by s.11 in relation to the content of the advertisement.  In the circumstances, we cannot say that the Traffic Commissioner did treat the Appellant unfairly or otherwise improperly and accordingly this ground of appeal fails.’

 

12.      The same Tribunal made the following comments, at paragraph 3 of its decision in JCM Print Services Limited (2003/120):

 

‘3.           Upon the hearing of this appeal, Mr Tyrer told the Tribunal that the Appellant company had been part of a larger organisation that had held an operator’s licence.  Re-structuring of the parent company had resulted in the Appellant being sold with a management team with no experience in operator’s licensing.  Having appointed a CPC holder and with the general turmoil within the company, the first advertisement was placed outside the statutory 21 day period before the application date and then the second advertisement was published 22 days after the application.  He asked the Tribunal to consider the appeal sympathetically.  As with the case of Project 2000 Europe Limited 2003/169 which we heard on the same day as this appeal, we do indeed have considerable sympathy with the Appellant company but cannot allow the appeal.  S.11 is clear in its terms: the Traffic Commissioner shall refuse an application without considering the merits unless s.11(2) has been complied with.  S.11(2) requires an applicant to publish a notice of the application in a local newspaper within the period of 21 days before or 21 days after the date of the application.  The Act does not give the Traffic Commissioner any discretion to grant an application with an advertisement outside this time period.  This is to be contrasted with the discretion given to the Traffic Commissioner by s.11 in relation to the content of the advertisement.’

 

13.      Although the Appellant in the instant case has not attended the oral hearing of the appeal, we have no reason to doubt that the failure to adhere to the section 10(2) requirements was inadvertent and was based on a misinterpretation by an employee of the relevant time limits. Further, we can understand his sense of injustice. Nonetheless, as in the two cases referred to above, the Deputy Head of the TRU had no discretion in the matter. The decision of the Deputy Head of the TRU was not wrong and is confirmed. The appeal is, accordingly, dismissed.     

 

 

 

 

 

Kenneth Mullan, Judge of the Upper Tribunal,

15 September 2015