Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 444 (AAC)

Fecha: 19-Oct-2023

The appeal

The appeal

16.

At the hearing of this appeal, Ms Newton, solicitor of Smith Bowyer Clarke solicitors appeared on behalf of the company. Mr Johnston of counsel appeared on behalf of the Secretary of State. Both provided the tribunal with skeleton arguments for which we were grateful.

17.

This appeal raises a number of issues which give cause for concern. Rather than follow the chronology of the grounds of appeal which to some extent overlap, and, which with the greatest of respect to Ms Newton, do not necessarily highlight all of the issues that need to be determined, we are satisfied that the better approach is to address the various topics on an individual basis which should produce an overall picture before considering the company’s response to the PTR letter dated 18^th September 2023.

18.

The authorised operating centre

Section 7 of the Act sets out the requirement that a holder of an operator’s licence must have a place to be used as an operating centre. Section 7(3) of the Act defines an operating centre as “the base or centre at which the vehicle is normally kept”. The relevant provisions of s.13C of the Act can be summarised in this way:

(5)

the operating centre specified on an operator’s licence must be “available and suitable for use” as an operating centre of the licence holder;

(6)

the capacity of the place specified as an operating centre must be sufficient to provide an operating centre for all the heavy goods vehicles used under the licence;

(9)

In considering whether subsection (5) or (6) will apply in relation to every goods vehicle licence, the traffic commissioner may take into account (if this is the case) that any proposed operating centre of the applicant would be used -

(a)

as an operating centre of the holders of other licences as well as an operating centre of the applicant; or

(b)

by the applicant or by other persons for purposes other than keeping heavy goods vehicles used under the licence.

19.

Discussion

In the normal course of events, when an application is made for a new licence, some basic steps are taken by the Office of the Traffic Commissioner (“OTC”) in order to establish the following, pursuant to the provisions of s.7 & s.13C of the Act:

enquiries as to whether the applicant has permission to use the site as an operating centre and that there is a formal agreement in place between the site owner and the applicant guaranteeing parking facilities for the number of vehicles and trailers to be authorised on the licence. This requirement is substantially more than being able to take advantage of a publicly available parking facility provided the relevant parking fees are paid;

in a case where an applicant does not have exclusive use of the site or where there are concerns that other vehicles use the site (whether authorised on a licence or not), the appropriate step is to ask for a site plan showing where the designated parking for the applicant’s vehicles is situated on the site and request details of the steps to be taken to prevent others parking in that area;

when it is known or there is reason to believe that the site is shared with other operators, then some investigation should be undertaken to ascertain the number of other vehicles which are authorised to use the site as an operating centre and where the designated parking is situated for those vehicles on the site. It is often prudent for the DVSA to be asked to visit to make an assessment of the site’s availability and suitability.

As the second paragraph of the TC’s letter of 22^nd June 2023 confirms:

“Section 7(3) of the above Act defines an operating centre as the “base or centre at which the vehicle is normally kept”. When determining an application the Traffic Commissioner must consider if the proposed operating centre satisfies the requirement to be available and suitable for use as an operating centre, and that the capacity of the site is sufficient for the number of vehicles and trailers authorised respectively”.

20.

There is no evidence before this Tribunal that any of the basic and appropriate steps were taken prior to the grant of the company’s licence. This is all the more surprising when all the OTC had to do was interrogate its own systems as was eventually done, to ascertain the number of vehicles authorised to use the site, make enquiries about the nature of the site and the number of parking spaces available. As became apparent after the grant of the company’s licence, the address was nothing more than a parking facility for use by any goods vehicle or private vehicle, provided they paid the correct parking fee, with more vehicles authorised to use the facility as an operating centre than spaces available. There is no explanation as to how this unsatisfactory state of affairs came to pass or any evidence, such as a case worker’s case file notes, detailing how it was determined that the truck stop was available and suitable for this company at the time of application, let alone the dozens of other licences that specified the truck stop as their operating centres. The “bottom line” is that the Red Lion Truck Stop is neither suitable or available without a formal agreement which guaranteed the company parking for three vehicles and three trailers within a designated area. It is clear that the company’s licence should not have been granted with the Red Lion truck stop as its specified operating centre.

21.

We have considered whether the company either misled the OTC whether by misrepresentation or by omitting to provide required information when making its application and we can find no evidence that would or could lead to that conclusion. We are not satisfied that describing it’s proposed operating centre in its application as “Red Lion” without reference to it being a truck stop would/should be considered a misrepresentation or otherwise misleading, particularly as the OTC should have been well aware what type of facility the Red Lion was having authorised over 250 vehicles to be kept at the site when not in use.

22.

Material Change

By s.26(1)(h) of the Act, an operator’s licence may be revoked, suspended or curtailed on the ground that:

“since the licence was issued or varied there has been a material change in any of the circumstances of the licence-holder that were relevant to the issue or variation of the licence”

The material change relied upon by the TC in its correspondence to the company is that the “operating centre has now become unsuitable” . Beneath that paragraph is a bullet point:

•

“No Stable and Effective Establishment as Operating Centre at The Red Lion Truckstop, Weedon Road, Upper Heyford, Northampton. NN7 4DE is now unsuitable for use as an Operating centre due to operating model”

It is far from clear whether the bullet point is to be read as part of the material change allegation or whether it is in fact to be read in conjunction with the following paragraph setting out concerns that the company may not have an effective and stable establishment, be of good repute and have appropriate financial standing.

23.

It is the company’s case that there has been no material change in its circumstances since the application for and the granting of the licence and that action under s.26(1)(h) of the Act could not be justified. The circumstances of the company had not changed at all. The realisation on the part of the TC that there may have been some procedural irregularities/mistakes in the granting of this licence did not fall within the ambit of s.26(1)(h). The only option available to the TC was to serve a notice on the company during the five yearly review period provided under s.30 of the Act which enables a TC to remove an operating centre from a licence if deemed unsuitable under powers conferred upon the TC by s.31 of the Act.

24.

In his oral submissions, Mr Johnston identified the change of circumstances relied upon by the TC as being the change of the TC’s view/understanding of the operating centre as a result of the new information that had come to light namely, that there were 250 parking spaces which was insufficient for the 250 plus vehicles authorised to park there; there were no designated parking spaces for the use of a single operator and that parking must be booked in advance. It is the SofS’s case that s.26(1)(h) of the Act is sufficiently broad to encompass any change of circumstances which are relevant to the issue or variation of an operator’s licence, including a TC’s change of view as to the suitability of a site as an operating centre. Moreover, the TC was relying on breaches of ss.26(1)(b) (e) and (f) of the Act, which when taken together with the unsuitability of the operating centre, amount to a material change. It would be “a surprising set of circumstances” if the TC was bound by a decision based on a mistake of fact on his part at the time of granting the licence which could not be reviewed save for the power to review under s.30 of the Act at the five-year point.

25.

Discussion

We are satisfied that the plain wording of s.26(1)(h) of the Act does not extend to a TC changing their view about the suitability and availability of an operating centre when the circumstances of the operator had not changed since the application for and the granting of the operator’s licence, particularly when the operator had not caused or contributed to the circumstances in which an operator’s licence should not have been granted in the first place. The procedural irregularities are the result of failings within the OTC. And contrary to submissions that unless s.26(1)(h) is construed broadly there are no means by which a decision can be reviewed before the five year review period, there is in fact a procedure for reviewing decisions to grant or refuse an operator’s licence contained is s.36 of the Act if a procedural requirement imposed by or under any enactment has not been complied with in relation to the decision. It reads:

“36 Review of decisions.

(1)

Subject to subsection (2), a traffic commissioner may review and, if he thinks fit, vary or revoke any decision of his, or of another traffic commissioner,to grant or refuse —