Case No. UKUT-00320-(AAC)

37.As to the approach we must take with respect to an appeal such as this, paragraphs 17 of Schedule 4 to the Transport Act 1985 (as amended) provides that the Upper Tribunal “are to have full jurisdiction to hear and determine all matters whether of law or of fact for the purpose of the exercise of their functions under an enactment relating to transport”. However, it was explained by the Court of Appeal in Bradley Fold Travel Ltd and Another v Secretary of State for Transport [2010] EWCA Civ 695, that the Transport Tribunal (now the Upper Tribunal) will not be required to rehear all the evidence by conducting what would, in effect, be a new first instance hearing. Rather, it has the duty to hear and determine matters of fact and law on the basis of the material before the TC but without having the benefit of seeing and hearing from witnesses. The appellant assumes the burden of showing that the decision appealed against was wrong. In order to succeed an appellant must show that the process of reasoning and the application of the relevant law requires the adopting of a different view to that taken by the TC. Further, paragraphs 17 (3) of the same Schedule provides that in deciding an appeal the Upper Tribunal may not take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal.38.As to disposal, the Upper Tribunal has power, if allowing an appeal, to make such order as it thinks fit or to refer the matter back to the TC for rehearing if it considers such a course to be appropriate.