![[2024] UKUT 444 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
A traffic commissioner may under subsection (1) review a decision only —
A traffic commissioner may under subsection (1) review a decision only —
if, within such period after the taking of the decision as may be prescribed, he or another traffic commissioner has given to the applicant or (as the case may be) the licence-holder notice of intention to review the decision;
if, within that period, a person who appears to him to have an interest in the decision has requested that the decision be reviewed by a traffic commissioner; or
(where neither paragraph (a) nor paragraph (b) applies), if he considers there to be exceptional circumstances that justify the review. ..”
The Tribunal was not taken to this section by either Ms Newton or Mr Johnston and so we have not had the benefit of submissions upon the construction of this section. However, our preliminary view is that the combined effect of ss.36(1) and (2) is that there is a power to review the grant of the licence in the circumstances set out in (2)(a) and (b) within two months of the grant (by virtue of reg 34 of the Goods Vehicles) Licensing of Operators Regulations 1995) and a power to review if a TC considers there to be exceptional circumstances justifying a review without any constraint on the timing of that review. We consider that the circumstances of this case would fulfil the criteria of “exceptional” under s.36(2)(c) of the Act, which would have entitled the TC to review the grant of the licence on the ground specified but this is not the statutory provision relied upon by the TC. Moreover, whilst Mr Johnston submitted that the TC also relied upon breaches of s.26(1)(b), (e) and (f) in support of a finding of material change, that is not how the PTR letter is worded. Material change is limited to the operating centre. In the circumstances, we are not satisfied that there was any evidence to base an allegation of material change as set out in the PTR and the revocation letters. Similarly, we are not satisfied that there had been a breach of s.26(1)(b) of the Act (the requirement to notify the TC of any relevant changes), the change cited being to the operating centre.
We consider that in the peculiar circumstances of this case and in particular, that the errors made prior to the granting of the licence authorising the Red Lion as the operating centre were not caused or contributed by the company, the letter of 22nd June 2023 should have been clearer in setting out the requirement for the company to find an alternative operating centre and should have directed that the company regularise its position with regard to the operating centre within a given period of time (with or without the payment of a fee). We repeat, the company was not in a position of its own making with regard to the operating centre. Whilst we do not know how the company may have responded, in the absence of a timeline, the letter failed to convey any sense of importance or urgency with regard to regularising the position. As Ms Iordache commented in her letter dated 21st September 2023 “I did not understand from your letter that I have to stop using it or stop operating”.
Paragraph 40 of Mr Johnston’s skeleton argument reads:
“The Tribunal will need to determine whether the June 2023 letter was merely suggestive and - even if it was - whether the appellant should have been granted more time, such that the TC erred when he suspended the licence on 19th of October 2023”.
We are satisfied that for the reasons given above, the letter was inadequate and that at the very least, time should have been given to the company to apply for a new operating centre even before the PTR was issued. In the result, we consider that the procedure adopted was unfair.
Stable and effective establishment
The requirement to have an effective and stable establishment is set out in paragraph A1 of Schedule 3 of the Act. The relevant parts provide:
A person has an effective and stable establishment in Great Britain under section 13A(2)(a) if the person satisfies, or will satisfy on the issuing of an operator’s licence, the requirements set out in sub-paragraph (2).
The requirements are that the person—
has premises in Great Britain at which the person—
is able to access, in electronic or any other form, the originals of the person’s core business documents, and
carries out effectively and continuously, with appropriate equipment and facilities, the administration of the person’s transport service,
has access to one or more goods vehicles that are authorised to be used under the person’s operator’s licence,
has at a place or places in Great Britain—
a number of goods vehicles referred to in paragraph (b) that is proportionate to the national or international transport operations carried out from each place, and
a number of drivers that is proportionate to the number of goods vehicles operating from that place …”
It is the company’s case that the TC was plainly wrong to find that a concern relating to capacity and suitability of an operating centre equated to a lack of stable and effective establishment. It was not suggested that the operating centre was unavailable or that the company lacked a base at which records could be kept or that there was any issue with access to vehicles.
Discussion
The nominated address for the purposes of sub-paragraphs (1) & (2) of paragraph A1 of the Schedule is 8 Ennismore Green, Luton, not the Red Lion Truck Stop as is suggested in the PTR letter (see above). However, it might have been the case that the TC was concerned that the company’s failure to respond to correspondence and to comply with the requests made by the DVSA for relevant documents for the purposes of conducting a DBA gave rise to the concern that the address was not being used as required by the sub-paragraphs. The PTR letter is unclear and fails to adequately set out the grounds for concern. Moreover, it might have been the case that the TC considered that as a result of the unsatisfactory situation with the operating centre, that there was a breach of sub-paragraph (2)(c). Again, the PTR letter is unclear and fails to adequately set out the grounds for concern. Section 27(3) of the Act makes clear that that PTR letter “shall state the grounds on which the traffic commissioner is considering giving a direction..”.
In his submissions, Mr Johnston referred the Tribunal to the case of Newbold v The Coal Authority (2013) EWCA Civ 584 concerning the adequacy of statutory notices (as in the case of a PTR letter), Sir Stanley Burnton held:
“In my judgment, … a notice is valid provided it adequately provides the information required by the regulations …”
We are not satisfied that the PTR letter did provide either clear or adequate information as to the grounds upon which the TC was considering revocation of the company’s licence. It follows that the PTR letter was defective.
And we go further. Whatever the reasoning for asserting that there was evidence that the company no longer satisfied the requirement to have a stable and effective establishment, which, if found to be the case, would result in mandatory revocation of the licence, the PTR letter should have put the company on notice that by virtue of s.27(3A) of the Act, the TC had a discretion to grant a period of grace and that accordingly, the company could ask the TC for time to regularise its position. Ms lordache’s response to the PTR was effectively asking for more time which may have been better informed/assisted by a reference to the right to apply for a period of grace in the PTR letter.
In all the circumstances, we consider that the failure in this instance to adequately set out reasons for the TC’s concerns and the failure to refer to the TC’s discretion to grant a period of grace renders the PTR letter seriously deficient and amounts to an error of law.
Breach of s.26(1)(e)
One of the two statements relied upon by the TC in support of a breach of s.26(1)(e) was that the company would abide by any conditions imposed on the licence, namely: cooperation with the DVSA. There is no condition recorded on the licence requiring cooperation with the DVSA and so it follows, there was no evidence upon which to base that assertion. However, as Ms Newton conceded, all operators have a positive duty to co-operate with the DVSA and the TC/OTC to enable investigation and regulation of their operational activities (see T/2010/064 JWF (UK) Ltd). Ms Newton further conceded that the company’s failings in this regard went to the issue of good repute and as a result, whilst correctly identifying a cause for concern, the PTR letter is plainly wrong in its categorisation of that concern as a breach of condition.
Ms Iordache’s response to the PTR letter
It is the company’s case that the response, and in particular, the paragraph -
“Please consider allowing us a chance to prove these were not intentional errors but rather misunderstandings, especially regarding the suitability of the operating centre”
in the context of this case and on a fair and reasonable interpretation, should have been taken to be a request for a public inquiry despite Ms Iordache failing to specifically request a “public inquiry” or even a hearing. It was unlikely that either the director or Ms Iordache, had any relevant experience upon which to draw when formulating a response to the PTR letter but in any event, the above quoted paragraph was sufficient. Ms Newton referred the Tribunal to the appeal decision of 2005/57 Maynard Winspear in which the Appellant specifically asked for a public inquiry, then subsequently asked for the date upon which the public inquiry was to take place and later referred in correspondence to the “interview” he was to have with the Traffic Commissioner. She submitted that this demonstrated the generous approach which must be afforded to operators who have the right to have a proposed revocation properly scrutinised. Ms Newton submitted that the Winspear appeal was similar on the facts to this present appeal.
Ms Newton also referred us to UA-2022-000538-T Pamela Hibberd in which the Appellant accepted that her licence would have to be revoked and that she would need to apply for a new licence. She advised the TC that she would not ask for a public inquiry prior to revocation unless the TC was minded to make findings with regard to professional competence and good repute. If the TC was so minded, the Appellant asked for a public inquiry. The licence was then revoked without a hearing, with findings that both good repute and professional competence were “severely tarnished .. which will have an impact .. on the future application ..”. The licence revocation was overturned on appeal. Ms Newton submitted that the Hibberd appeal was helpful to the company in this case because the decision made clear that if an operator wanted a public inquiry “all you have to do is ask”. It would be too restrictive to find that an operator must use the words “public inquiry” in order for one to take place, particularly when the loss of a licence would affect “lives and livelihoods” and if such a narrow prescriptive approach was expected, the PTR letter inviting a response ought to direct that those words be used by the operator.
Discussion
The Tribunal has not sought to summarise the SofS’s submissions on this point prior to moving to our Discussion as we adopt them and incorporate them into our reasons.
The purpose of s.29(1) of the Act is to ensure that a licence revocation does not take place without giving an operator an opportunity to request a public inquiry. The purpose of the public inquiry is to give the operator an opportunity to adduce evidence, call witnesses to cross-examine witnesses and to address the TC. Parliament did not assume that a public inquiry would be necessary in all cases or that a public inquiry would be requested in all cases.
The correct approach when construing the response to a PTR letter is to ask how would “a reasonable recipient of the notice interpret it, reading it in its statutory or contractual context” (see the Privy Council decision in All Saints Spring Park Parochial Church Council v Church Commissioners [2024 UKPC 23]).A reasonable recipient (whether a TC or a member of staff in the OTC) of the company’s response would be aware:
Parliament did not assume a public inquiry would be necessary in all cases;
An operator can be taken to be familiar with the statutory regime (see T/2012/30 MGM Haulage & Recycling Ltd [2012 UKUT 346 (AAC)]) and can be taken to understand that they can request a public inquiry but if no request is made, a decision will be taken without a hearing;
The OTC will not find a request for a public inquiry when none is made.
Any request for a public inquiry is likely to contain the words “public inquiry”. At the very least a response to a PTR letter will make clear that the operator wishes to adduce further evidence or make further representations before a decision is taken. A response which requests a “hearing” or an “interview” or a “meeting” in order to put evidence before the TC to explain matters more fully and to explain errors, would, for example, be fairly construed as a request for a public inquiry.
We agree that upon a careful reading of Ms Iordache’s response, it could not reasonably be read to contain a request for a public inquiry. The PTR letter clearly explained the right to make representations and to request a public inquiry. The company chose to make written representations which explained in relation to each issue raised in the PTR letter why the error had occurred and what steps had been taken to remedy the situation and establish a new course of conduct. There was no suggestion that there was any more information or evidence that the company wished to produce that ought to be taken into account. This finding is reinforced by the company’s reaction when it was notified on 19th October 2023 that its licence had been revoked. During the course of numerous telephone calls that day, the company did not raise the issue of why the company’s request for a public inquiry or hearing had not taken been acted upon before the licence had been revoked. The reason for that is that the company had not asked for one.
The appeal decision of Winspear (ante) does not assist the company. Mr Winspear had asked for a hearing at the outset and continued to request a hearing or interview up to the point when his licence was revoked. Neither does the appeal decision of Hibberd (ante) assist as it states the obvious: if an operator would like a public inquiry, all they have to do is ask. Ms Iordache did not do so in her response letter.
To conclude, the PTR letter made clear that the company had the right to request a public inquiry but the company did not do so. Whether as a result of legal advice or otherwise, the company has had a change of heart about choosing to make written representations without requesting a public inquiry but there is no basis for reading the response letter so as to include such a request.
- Heading
- The appeal is ALLOWED in part and the revocation of the operator’s licence is set aside. The matter is remitted back to the Traffic Commissioner for consideration of the outstanding variation applicat
- The Background
- The appeal
- an application for an operator’s licence, or
- A traffic commissioner may under subsection (1) review a decision only —
- Conclusions