The appeal decision
10.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”.Discussion13.Section 12A of the 2010 Act provides for the requirements to be met in order to hold a Standard Operator’s Licence. The first requirement is set out in s.12A(2)(a) as follows:Requirements for standard licences12A.—(1) The requirements of this section are set out in subsections (2) and (3).(2) The first requirement is that the Department is satisfied that the applicant—(a)has an effective and stable establishment in Northern Ireland (as determined in such manner as may be prescribed)…The requirements to satisfy the requirement of having an “effective and stable establishment” are set out in Regulation 4A of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012. One such requirement is that the operator “has access to one or more goods vehicles that are authorised to be used under the person’s operator’s licence” (Regulation 4A(2)(b)). Where one of the requirements for the holding of an operator’s licence is not met, s.24 of the 2010 Act provides that the licence may be revoked:14.The Appellant attended his appeal hearing and made submissions in support of his case. He explained that he is a self-employed joiner by trade and had applied for an operator’s licence in order to take on some haulage work for additional income. His family have been in the business for many years. The haulage business was to supplement his joinery income with a view to it potentially taking over as his main income stream. He applied for his licence but owing to the consistency of his joinery work and then the difficulties that came along with the COVID-19 pandemic, he did not obtain access to a lorry to make a start with the haulage work. Prior to the appeal hearing, he had spoken to his uncle (in the business) who had offered him a lorry if his licence was to be retained. This information had not been put to the DfI when it made its decision. He submitted that he was genuine about his intention to get a lorry and use his licence and asked once again that his licence was retained.15.While we have every sympathy with the Appellant as to his reasons for not making use of his licence sooner, we cannot fault the decision of the DfI in this case. It is a fact that his licence was granted in April 2019 and the licence had not been used since it was granted. The Appellant had not had access to a vehicle and had taken no positive steps towards gaining access to one even when he was warned that failure to make use of it could result in the licence being revoked (see letters from the Central Licensing Office dated 16 February 2022 and 11 March 2022). As was stated in the case of 2009/225 Priority Freight Ltd & Paul Williams “actions speak louder than words” and had positive actions been taken after the warnings, even if they had not resulted in immediate access to a vehicle, the DfI may have been able to take a different view on this matter but unfortunately the regulations are clear. There must be access to a vehicle in order to hold an operator’s licence and the Appellant’s failure to do this means that the regulatory requirements were not being met. Consequently, the Central Licensing Office within the DfI had no choice but to revoke the Appellant’s operator’s licence. Unfortunately for the Appellant, the hands of the UT are also tied in this regard. The decision of the DfI to revoke this licence is not “plainly wrong” and the decision must stand.16.As an aside, we note the positive comments of the Head of the TRU at the conclusion of his stay decision (paragraph 18), suggesting that the Appellant may wish re-apply for a licence, his ability to be communicative and cooperative with the DfI being a positive point in his favour. With this comment, we agree. The Appellant presented as a genuine man with goals that had not come to fruition for reasons beyond his control, and we hope that he will consider re-applying in order to achieve them. L J Clough Judge of the Upper Tribunal R FryMember of the Upper Tribunal M Smith JP Member of the Upper Tribunal Authorised for issue on 2 January 202