Case No. UKUT-37-(AAC)

RATIVE APPEALS CHAMBER (TRAFFIC COMMISSIONER APPEALS)ON APPEAL from the DECISION of the DEPARTMENT FOR INFRASTRUCTURE (Transport Regulation Unit), for Northern IrelandBefore: Ms. L.J Clough: Deputy Judge of the Upper Tribunal Mr R. Fry: Member of the Upper Tribunal Mr M. Smith, JP: Member of the Upper TribunalAppellant: Derrymorgan Transport LtdRespondent: Driver and Vehicle AgencyReference No: 21DET009Heard at: Tribunal Hearing Centre, Royal Courts of Justice, BelfastOn: 15 November 2022DECISION OF THE UPPER TRIBUNALIN THE UPPER TRIBUNAL Appeal No. UA-2022-000001-NTADMINORTHERN IRELANDSTRATIVE APPEALS CHAMBER (TRAFFIC COMMISSIONER APPEALS)ON APPEAL from the DECISION of the DEPARTMENT FOR INFRASTRUCTURE (Transport Regulation Unit), for Northern IrelandBefore: Ms. L.J Clough: Deputy Judge of the Upper Tribunal Mr R. Fry: Member of the Upper Tribunal Mr M. Smith, JP: Member of the Upper TribunalAppellant: Derrymorgan Transport LtdRespondent: Driver and Vehicle AgencyReference No: 21DET009Heard at: Tribunal Hearing Centre, Royal Courts of Justice, BelfastOn: 15 November 2022DECISION OF THE UPPER TRIBUNALTHE APPEAL IS DISMISSEDSubject matter:Cases referred to Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI [2013] UKUT 618 AAC NT/2013/52 & 53; Bradley Fold Travel Ltd & Anor v Secretary of State for Transport [2010] EWCA Civ 695. Clarke v Edinburgh & District Tramways Co Ltd [1919] UKHL 303; (1919) SC (HL) 35; 56 SLR 303. Nolan Transport v VOSA & Secretary of State for Transport (T/2011/60). Shawe-Lincoln v Dr Arul Chezhayan Neelakandan [2012] EWHC 1150. Petrodel Resources Limited v Prest [2013] UKSC 34; [2013] 2 AC 415REASONS FOR DECISION1.This is an appeal to the Upper Tribunal brought by Derrymorgan Transport Ltd (“the Appellant”), against a decision of the Department for Infrastructure for Northern Ireland (“the DfI”), dated 28 November 2021. 2.The appeal was considered at an oral hearing, at the Tribunal Hearing Centre within the Royal Courts of Justice, Belfast, on 25 October 2022. The Appellant was represented at the hearing by Mr N Manly, solicitor. The Respondent was represented by Ms A Jones, BL.Background facts 3. On 24 June 2021, a right-hand drive 2-axle Scania vehicle with Bulgarian licence plate number B 7698 BC, together with a loaded 3-axle semi-trailer bearing the ID number C517427, was observed and thereafter stopped by Police Officer Stevenson while travelling on the Seagoe Road, Portadown. Vehicle Examiner Todd attended to carry out an investigation on the vehicle, arriving at the scene around 4.50pm in the afternoon. 4.The driver of the vehicle identified himself as Conall McKeever with an address in Craigavon, Northern Ireland. This was verified from his driver’s licence. He was wearing a jacket bearing the logo “Yellowford Transport” and confirmed that he was transporting a load from Portlaoise and Kildare in the Republic of Ireland for delivery in Warrenpoint and Craigavon, Northern Ireland. He stated that his employer was Marcus Morgan, who was contactable through his son, Michael Morgan on a UK mobile number and who was found on the Northern Ireland Driver database as residing at an address in County Armagh, Northern Ireland. The driver stated that he had never travelled to Europe with the vehicle. 5.The driver produced a community licence issued in Bulgaria with a perforated serial number 195133. This was noted to be a valid community licence in the name of “Derrymorgan Transport Ltd” with the right to carry out international carriage of goods. The licence was valid from 29 December 2015 until 28 December 2025. The Bulgarian authorities later confirmed that the director of Derrymorgan Transport Ltd is Marcus Morgan, the purported employer of the driver of the vehicle. 6.On examination of the vehicle, Vehicle Examiner Todd noted that the trailer was displaying a UK number plate which did not match the drawing vehicle registration plate. The trailer registration plate was found to match another drawing vehicle whose registered keeper was Marcus Morgan. The trailer’s plate was listed on the Northern Ireland Operator’s Licence of a Northern Ireland registered company, Yellowford Transport Ltd (ON1138467) from 28 May 2019 to 7 September 2020. The digital tachograph on the vehicle had been calibrated by a company based in Armagh on 1 July 2019 with two previous calibration tests also being carried out in Northern Ireland on 31 March 2017 and 4 July 2018. A receipt was located in the vehicle cab for a puncture repair on 18 June 2021 which had been carried out in Armagh, Northern Ireland with the customer name noted as Marcus Morgan. Tachograph analysis of the previous four weeks showed the company card inserted in the tachograph was that of Yellowford Transport Ltd (Northern Ireland based company), with vehicle start and finish locations within Ireland or the UK only (not Bulgaria). Invoices in the cab showed a service and safety inspection had been carried out by a Northern Ireland company on 2 December 2020. Two fuel cards were located, one of which was in the name of Yellowford Transport Ltd and another in the name of Marcus Morgan personally. The vehicle headlights were dipped in the direction consistent with the requirements for driving in the UK and Ireland rather than in Europe (Bulgaria). The vehicle, while bearing a Bulgarian registration plate, was consistent with the nature and style of vehicles used in the UK and Ireland – right hand drive and the rear registration plate was yellow which is UK practice. Fuel receipts in the vehicle were from Dundalk in the Republic of Ireland. A receipt book was found in the vehicle in the name of “Derrymorgan European Logistics Storage and Distribution” with an address in Mallusk, Northern Ireland. 7.Further checks did not reveal any start or finish points within Bulgaria and there was no evidence of the vehicle having returned to Derrymorgan Transport Ltd’s operating centre in Bulgaria. All driver cards inserted during the use of the vehicle were connected to drivers based within the UK or Ireland. The vehicle was noted to have been stopped on 1 June 2021 by the police and on that occasion, a different driver from Yellowford Transport was using the vehicle. 8.As a result of the investigation, Vehicle Examiner Todd detained the vehicle and trailer under s.1 of the Goods Vehicles (Licencing of Operators) Act (Northern Ireland) 2010 (hereinafter referred to as “the 2010 Act”) and Regulation 3 of the Goods Vehicle (Enforcement Powers) Regulations (Northern Ireland) 2012 (hereafter called the “2012 Regulations”). He reasoned that the driver had failed to satisfy him that the “user” held a valid licence in Northern Ireland and there was no evidence that the vehicle was being used in compliance with the Northern Ireland legislation. In particular, Vehicle Examiner Todd was not satisfied that the “user” was Derrymorgan Transport Ltd of Varna, Bulgaria. Nor was he satisfied that the vehicle was lawfully operating under a Bulgarian Community Licence, but rather an operator established and operating in Northern Ireland was attempting to “flag out” to a Bulgarian operator thus evading the NI regulations. 9.Following publication of details of the detention of the vehicle in the usual manner, the Appellant, Derrymorgan Transport Ltd of Varna, Bulgaria, applied for the return of the vehicle. On 22 November 2021, a virtual hearing took place to determine this application. In attendance virtually were: Marcus Morgan, Director of Derrymorgan Transport Ltd of Varna, Bulgaria; Neil Manley, solicitor, representing the applicant; Ashleigh Jones, BL on behalf of the DVA; Vehicle Examiner Alan Todd, witness for DVA; and the clerk on behalf of the Transport Regulation Unit within the DfI, to ensure the smooth running of proceedings. The DfI’s decision under appeal10.The Presiding Officer of the Transport Regulation Unit (“the TRU”), on behalf of the Department for Infrastructure (“the DfI”), prepared a written decision in this matter, which was signed for issue on 28 November 2021. He refused the application for return of the vehicle B7698BC, under Regulation 3 of the 2012 Regulations, on the basis that it was not being used in accordance with s.1 of the 2010 Act. He ordered that the vehicle be disposed of accordingly.The appeal11.The appellant lodged an appeal with the Upper Tribunal against the decision of the DfI. This was supplemented by a Skelton Argument prepared by Mr N Manley, solicitor on behalf of the Appellant (unsigned and undated). In short, the Appellant, through its solicitor, submitted that there were two matters in issue on appeal: firstly whether Derrymorgan Transport Ltd used the vehicle in question in contravention of section 1 of the 2010 Act; and secondly whether the DVA were correct in impounding the vehicle under Regulation 3 of the 2012 Regulations. 12.It was an agreed fact that the Appellant company, Derrymorgan Transport Ltd, is a limited company registered in the Bulgarian Companies Registry from 29 December 2015, and has a registered office in Varna, Bulgaria. It was agreed that the company holds an Operator’s Licence with a Community Authorisation Certificate in Bulgaria and that the vehicle in question, Scania tractor unit, registration B7698BC, was authorised on the Bulgarian licence held by Derrymorgan Transport Ltd. The Appellant did not dispute the facts of the case as set out in paragraphs 3 to 7 above. 13.In relation to ownership of the vehicle, it was submitted that as only the owner is entitled to apply for return of the vehicle, it was “highly unlikely” that the vehicle would belong to anyone other than the Appellant company as to do so would nullify its entitlements under its Community Licence. It was submitted that for Mr Morgan to own the vehicle personally would be of no commercial benefit to him as he would not be in a position to operate that vehicle in either jurisdiction without the requisite licences. It was therefore suggested that applying logic, on the balance of probabilities, the Appellant company was the lawful owner of the vehicle and thus entitled to apply for its return. 14.In relation to whether the vehicle was used in contravention of s.1 of the 2010 Act, the legality of the detention of the vehicle was challenged on the basis that the use of the vehicle did not require an operator’s licence under the 2010 Act and therefore there was no breach of the legislation. It was submitted that this is so as section 1 of the 2010 Act was amended on the day of exiting the EU by virtue of the Licencing of Operators and International Road Haulage (Amendments etc) (EU Exit) Regulations 2019 (“the 2019 Regulations”) thus permitting a haulier established within a member state to carry goods for international carriage (for hire or reward) to be used without a UK/NI Operators Licence while moving within Northern Ireland (s.1(2)(d) and (2A) of the 2010 Act, as amended). On this basis, the Appellant submits that the DVA were incorrect in detaining the vehicle under Regulation 3 of the 2012 Regulations.The Approach of the Upper Tribunal15.As to the approach which the Upper Tribunal must take on an appeal such as this, it was said, in the case of Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI [2013] UKUT 618 AAC, NT/2013/52 & 53, at paragraph 8:“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 or 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.’ 16.At paragraph 4, the Upper Tribunal 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.”17.The task of the Upper Tribunal, therefore, when considering an appeal from a decision of the DfI in Northern Ireland, is to review the information which was before the Department along with its decision based on that information. The Upper Tribunal will only allow an appeal if the appellant has shown that “the process of reasoning and the application of the relevant law require the tribunal to take a different view” (Bradley Fold Travel Limited and Peter Wright v. Secretary of State for Transport [2010] EWCA Civ 695, [2011] R.T.R. 13, at paragraphs 30-40). In essence therefore the approach of the Upper Tribunal is as stated by Lord Shaw of Dunfermline in Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 36-37, that an appellate court should only intervene if it is satisfied that the judge (in this case, the decision of the Presiding Officer on behalf of the DfI) was “plainly wrong”.