Case No. UKUT-00192-(AAC)

(1)Any of the persons mentioned in subsection (2) may make an objection to the grant of an application for an operator’s licence on the ground – (a)That any of the requirements of sections 13A to 13D are not satisfied in the case of the application; or(b)that any place in the traffic area concerned which, if the licence is issued, will be an operating centre of the holder of the licence, will be unsuitable on environmental grounds for use as such.(2)The persons who may make such an application are-…(d)A planning authority. (3)…(4)…(5)…(6)Any objection under subsection (1) (a) shall be made – (a)Within the prescribed time;(b)In the prescribed manner.(7)Any objection under subsections (1)(b) or representations under subsections (4) shall be made –(a)Within the prescribed time after the making of the application to which they relate;(b)In the prescribed manner.(8)Where a Traffic Commissioner considers there to be exceptional circumstances that justify his doing so, he may direct that an objection or representations be treated for the purposes of this Act as duly made under this section, notwithstanding that the objection was not, or the representations were not, made within the prescribed time or in the prescribed manner.(9)Any objection under subsection (1) shall contain – (a)In the case of an objection under paragraph (a), particulars of the ground on which it was made,(b)In the case of an objection under paragraph (b), particulars of any matters alleged by the person making the objection to be relevant to the issue to which it relates. …”29. The above represents the wording, as it was, at all material times for the purposes of this appeal.30. Regulation 11 of the Goods Vehicles (Licensing of Operators) Regulations 1995, requires objections made under section 12 of the Act to set out the basis for the objection, to be signed, and to be copied to the licence applicant on the same day or the next working day after delivery to the TC. Regulation 12 also requires the objection to be made within a 21-day period commencing immediately after notice of the licence application was published (the requirement for publication being contained within section 11(2) of the Act).31. It is, we think, effectively the position of the appellant that those or some of those requirements were not complied with such that the TC was not entitled to give consideration to the objection.32. We accept that not all of the above requirements were complied with by the local authority when making its objections to the grant of the licence or that, at least, we accept that the material before us does not show that they all were. In particular, whilst it seems clear that the written objections were lodged within the applicable 21-day time limit, it does not appear that the written objection initially lodged with the TC was signed (notwithstanding an apparent suggestion from an OTC caseworker that it was) and it does not appear that a copy was sent to the appellant on the day of lodgement or the following day. The TC, though, does have a power (see above) to treat objections as having been duly made even where not made in the prescribed manner, if satisfied that there are exceptional circumstances to justify that being done. The TC’s reasoning did not include any express finding that there were such exceptional circumstances but, in our view, it may readily be inferred that he had so concluded bearing in mind that the issue of the need to consider exercising such discretion had been drawn to his attention by the caseworker who was assisting him; and that the impact of the coronavirus pandemic upon administrative procedures undertaken by many organisations including, we assume, local authorities had been significant. We have, therefore, proceeded on that basis. But additionally, and in any event, we would make the obvious point that section 13 of the Act requires a TC to consider (the phrase used is “must consider”) whether the requirements of sections 13A and 13C are satisfied. As already noted, section 13C(5) contains a requirement that the Operating Centre must be available to be so used. Thus, irrespective of the position regarding compliance with requirements for the lodging of objections, the TC had to decide the question of availability and, of course, had to do so on the basis of all of the material in front of him. For those reasons we do not consider this ground of appeal to be made out.33. That leaves ground 3. It was that ground which took up all of the time at the oral hearing of this appeal and which has comprised the main battleground between the appellant and the respondent. We have to consider whether the TC approached the question of availability correctly in light of what he had identified as an existing planning dispute concerning the land in which the Operating Centre was to be located.34. There is previous case law which we think it appropriate to consider.35. In a decision of the Transport Tribunal in 2003/87 J Hansford it was said that it was undesirable for a TC to become involved in questions of land law and that a similar view was to be taken “in relation to planning law’. In Subic Solutions Limited [2010] UKUT 468 (AAC) the Upper Tribunal said that the Act does not allow for the grant of a licence if an Operating Centre is not available and the TC’s decision to the effect that the proposed Operating Centre in that case was unavailable in consequence of a lack of evidence of the landlord’s “clear permission”, was upheld. In 2004/202 D Holloway it was said by the Transport Tribunal, that TC’s “should not be invited or expected to investigate or resolve outstanding questions of property law”.36. The above case law supports the view that where there are planning or similar sorts of disputes of substance which are unresolved and which concern the lawfulness or otherwise of the use of a site as an Operating Centre, a TC ought not, absent something exceptional, to seek to adjudicate upon such matters himself/herself. Some of the decisions we have referred to above are, by now, a little dated. But we have not been given any persuasive reason to depart from the logic which underpins those decisions, and we can detect no such reasons for ourselves. Indeed, it seems to us entirely rational and sensible to say that it would be inappropriate to expect a TC to have the necessary planning expertise and experience to enable him or her to properly assess the likely outcome of a planning dispute or to seek to adjudicate upon a dispute of a technical nature as to whether a particular use might be lawful or not. Further, it is of course the case that planning law itself provides a machinery for such disputes to be resolved in the way that, for example, Mr M Clark’s own dispute with the local authority was resolved on a previous occasion.37. The key element of the TC’s decision in this case was to the effect that he could not be satisfied, in the circumstances and in light of the dispute and the indication that planning enforcement action would be taken, that the proposed site was available. Given the clear indications emanating from the local authority it was entirely reasonable for the TC to conclude that, had a licence been granted, enforcement action would be taken and that had direct relevance to the question of availability. In truth, as a matter of law, we cannot see that the TC could viably have reached any different conclusion as to availability than that which he did reach. His approach of not seeking to second guess what might have been the outcome of the planning dispute and his approach in saying that such was not a matter for him, was a lawful one. It was also, from a common-sense perspective, in our view, the correct one. We are not able to say, therefore, that the TC made any error of law and we are not able to say that he reached a conclusion that was plainly wrong. That being so, although we can understand why the point has been argued, we reject this ground of appeal.38. In light of the above, we have no alternative but to dismiss this appeal. We will, however, permit ourselves some brief observations. The evidence did appear to suggest, whilst we appreciate there might be considerations unknown to us or quirks of planning law and practice with which we are not familiar, that the use of the proposed Operating Centre in the way Mr Pedal has indicated it would be used, would not be particularly intrusive and would not necessarily result in any more disruption, journeys, or vehicle movements than are currently being undertaken at the present time. It is fair to say that we are, therefore, a little surprised at what appears on one view to be an unduly firm approach taken by the local authority with respect to the planning considerations. We imagine, given our decision, some form of planning application might now have to be made by or on behalf of the appellant, and we would express the hope (though we have no reason to think the position would be otherwise) that such an application would be dealt with in a balanced and flexible manner. We stress however, it is not for us to seek to suggest what the outcome of any such application ought to be.