Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport
CHAMBER(TRAFFIC COMMISSIONER APPEALS)ON APPEAL from the DECISION of the DEPARTMENT FOR INFRASTRUCTURE, 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: Mr Mark McBurney t/a MMB HaulageReference No: ON2021547Heard at: Tribunal Hearing Centre, Royal Courts of Justice, BelfastOn: 16 November 2022DECISION OF THE UPPER TRIBUNALIN THE UPPER TRIBUNAL Appeal No. UA-2022-000480-NTADMINISTRATIVE APPEALS CHAMBER(TRAFFIC COMMISSIONER APPEALS)ON APPEAL from the DECISION of the DEPARTMENT FOR INFRASTRUCTURE, 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: Mr Mark McBurney t/a MMB HaulageReference No: ON2021547Heard at: Tribunal Hearing Centre, Royal Courts of Justice, BelfastOn: 16 November 2022DECISION OF THE UPPER TRIBUNALTHE APPEAL IS DISMISSED.Subject matter:Revocation of operator’s licence; Establishment requirement not metCases referred to 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. 2009/225 Priority Freight Ltd & Paul WilliamsREASONS FOR DECISION1.This is an appeal to the Upper Tribunal brought by Mr M. McBurney t/a MMB Haulage (hereinafter “the appellant”), from a decision of the Department for Infrastructure (“the DfI”) to revoke his Standard National Goods Vehicle Operator’s Licence, which was embodied in a letter to the appellant dated 4 April 2022.The facts 2.On 12 April 2019, the Appellant t/a MMB Haulage was issued with a Standard National Goods Vehicle Operator’s Licence authorising the use of one vehicle and one trailer, under the Goods Vehicle (Licensing of Operators) Act (Northern Ireland) 2010 (“the 2010 Act”). The operating centre was listed at Unit 12 Dennison Industrial Estate, Avondale Drive, Ballyclare, BT39 9EB. 3. On 16 February 2022, the Appellant contacted the DfI Central Licensing Office to ensure the address on his licence was correct, at which point it came to the DfI’s attention that no vehicle was specified on his licence. That same day, the Central Licensing Office wrote to the Appellant highlighting the fact that there had been no vehicle specified on the licence since it was granted. He was asked to confirm, by 2 March 2022, whether he was going to get access to a vehicle for use under his licence, as it is a legislative requirement for a licence holder to demonstrate that he has a formal arrangement for access to at least one vehicle at all times. He was warned that failure to respond could result in action being taken against his licence. On 20 February 2022, the Appellant wrote back to the DfI indicating that he had not utilised the licence since it was granted due to business decisions and the difficult times created by the COVID-19 pandemic. However, he stated that he was intending to get a vehicle and use the licence thus he asked to retain it. 4. On 11 March 2022, the Central Licensing Office wrote back to the Appellant serving notice under s.26(1) of the 2010 Act, that the Department was considering revoking his licence under s.24(1) of the 2010 Act. This states that a licence holder must have an effective and stable establishment under s.12A(2)(a), but by failing to provide details of access to a vehicle under his licence, he was not meeting this requirement. He was given the opportunity to make written representations for consideration by the Department in respect of this issue by 1 April 2022, and he was offered the opportunity to request a Public Inquiry (“PI”) to offer evidence as to why the licence should not be revoked. This letter was emailed to the Appellant who replied by email on 12 March 2022 with a letter making representations. His letter again sought the retention of his licence, reiterating that it was a combination of business decisions and the difficulties caused during the COVID-19 pandemic which caused him not to have gained access to a vehicle. 5. On 4 April 2022, the Central Licensing Office wrote to the Appellant indicating that it had revoked his operator’s licence with immediate effect under s.24 of the 2010 Act. The reasons given for this decision were: the Appellant’s letters had acknowledged that he had not used his licence since it was granted; he had not provided any timeframe within which he planned to use the licence; there was no vehicle specified on his licence and there had never been one specified since it was granted; there was no period of grace requested in order to gain access to a vehicle and use the licence; and he had not requested a PI to give evidence to support his plea to retain his licence. Consequently, the DfI were of the opinion that he had failed to meet the establishment requirement which must be met in order to have an operator’s licence. He was not permitted to operate from 4 April 2022 and was provided with the details on how to appeal the decision if he disagreed with it. 6. On 26 April 2022, the Appellant requested a stay of the decision on the grounds that he had gone to a lot of effort to get the operator’s licence and due to circumstances created by the COVID-19 pandemic, he had not been able to use it, but if he was able to keep it, he could get access to a vehicle, use his licence and create employment. He highlighted that he had never abused his licence but simply had not used it. He indicated that he had applied to the Upper Tribunal that same day to appeal the decision. 7. On 29 April 2022, the Head of the Transport Regulation Unit (hereafter “the TRU”) refused the application for a stay on the basis that the Appellant had not met the establishment criteria for holding an operator’s licence and his chances of making a successful appeal were low. In making this decision, the Head of the Transport Regulation Unit (“the TRU”) stated that, “if Mr McBurney does wish to pursue a career in road freight transport he may wish to obtain a vehicle and reapply. I note the readiness he has been [sic] to communicate promptly with the Department and this is certainly a positive feature. Any application will be considered on its own merits” (paragraph 18 of the Head of the TRU’s written decision on the issue of a stay, at page 45 of the Appeal Bundle). The appeal 8. The appellant lodged an appeal with the Upper Tribunal on an official appeal form signed and dated on 5 April 2022. In his grounds of appeal, the appellant stated:“I am appealing to keep my operator’s licence as I have not used if of yet but I do plan to use it in the near future. The reasons I have not used it is due to business decisions, I was issued the licence in 2019, with the pandemic and other factors during hard times I have not got to use it of yet. I had put a lot of effort into obtaining the licence to start with as I was planning to make use of it, I still am.I do believe that with this licence I could gain or provide employment in the near future, I can only ask in all sincerity that this will be taken into consideration and I will be allowed to keep the licence. My licence is only for one vehicle, I have never abused the license or any of the like, I do understand that I could re apply for a new license, but with already having this one been granted I only hope I will be allowed to keep it, as without it I do believe it would stop me from gaining or creating employment in the future, again I hope this will all be taken into consideration and also in the interest of time efficiency I can keep this license.”9. The Appellant did not renew his application for a stay of the DfI’s decision to revoke his operator’s license. The appeal was heard in the Tribunal Hearing Centre at the Royal Courts of Justice in Belfast on 16 November 2022. The Appellant was present at the hearing and was unrepresented. The appeal decision10.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.’ 11. 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.”12. 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 Central Licensing Office of the DfI) was “plainly wrong”.