[2024] UKUT 444 (AAC)

The background relevant to the appeal can be found in the appeal and hearing bundles. In late 2022 (the precise date is not included in the bundles), the company applied for a standard national licence authorising three vehicles and three trailers. The correspondence address and the stable establishment address was 8 Ennismore Green, Luton (the home address of the director and transport manager) and the operating centre address was “Red Lion, Weedon Road, upper Heyford, Northampton”; the maintenance contractor was Paragon in Basildon. The sole director was Alexandru Veloiu and the Transport Manager was Irina Iordache (Mr Veloiu’s wife). It would appear that no assessment of the suitability of the proposed operating centre (which was in fact a truck stop) was undertaken by the DVSA prior to the operator’s licence being granted on 31^st December 2022.

On 28^th February 2023, the DVSA sent the company an invitation to an online new operator seminar which was to be held on 21^st March 2023. The letter stated:

“This is to ensure that you are familiar with all aspects of vehicle and driver management as well as specific licence conditions. If the Traffic Commissioner found that your knowledge of the requirements relating to the operation of Goods Vehicles is lacking, this could be grounds to revoke your licence.”

The letter required the company to confirm attendance on or before 7th March 2023. No response was received.

On 7^th March 2023, the DVSA wrote again noting that there had been no response from the company to the above invitation. The letter went on:

“Please note that we do not normally offer more than two opportunities to attend a seminar. If you would like to request a 2^nd invite due to mitigating circumstances, please state reason(s) by return e-mail”.

Mr Veliou had clearly spoken to someone within the DVSA following receipt of the email, as he responded on 15^th March 2023 stating:

“As we discussed on the phone, unfortunately I won’t be able to attend this seminar. Sorry for any inconvenience”.

There is no attendance note of this telephone conversation within the bundles.

A further invitation to a seminar was sent to the company on 25^th April 2023. The seminar date was 16^th May 2023 and the company was asked to confirm attendance by 2^nd May 2023 and it was emphasised “It has been noted that you did not attend your previous invite” and the company was reminded that two offers to attend a seminar were not normally offered.

On 3^rd May 2023, the DVSA wrote again, noting that no reply had been received to the second invitation. The letter continued:

“Please note that if you fail to attend this seminar, it will result in further action by DVSA”.

Mr Veloiu responded on 9^th May 202 stating:

“Sorry for my late reply. I can confirm that I will attend the seminar, or if I will not be able to attend, it will be attended by the Transport Manager (if that is possible)”.

Nobody on behalf of the company attended the seminar on 16^th May 2023.

On 13^th June 2023, the DVSA emailed Ms Iordache attaching a letter requiring the production of records to enable a Desk Based Assessment of systems to take place (“DBA”) within fourteen days. Unfortunately, that letter is not within the bundle, only the covering email but a reply was required by 27^th June 2023 and a copy of the letter was also sent to the company’s correspondence address. There was no response. The DVSA wrote again on 3^rd July 2023. The letter was headed “Failure to respond to an official request for records and information” and gave the company a seven-day extension to submit the requested records. The letter concluded:

“Please be aware, that this is an official request … and failure to respond will result in the case being returned of the Office of the Traffic Commissioner as unsatisfactory which will result in in (sic) further enforcement action”.

Neither a response to the letter or the requested documentation was received by the DVSA.

On 22^nd June 2023, the Office of the Traffic Commissioner (“OTC”) wrote to the company. The letter referred to the operating centre using its correct title - “Red Lion Truck Stop” and stated:

“I refer to your goods vehicle operator’s licence which currently authorises you to operate 3 vehicles and 3 trailers from the operating centre detailed above.

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.

The Traffic Commissioner has received information regarding the Red Lion Truck Stop which indicates that the site may not meet the criteria for use as an operating centre. The site owners have confirmed that the site has capacity for 250 vehicles and trailers. Our records show that the current operators whose licences authorise use of the site have authority to park in excess of 250 vehicles. It is further understood that while the site owners may have given permission for you to park at the site, spaces are not designated for use by a single contractor and have to be booked in advance. This could mean that the site may be at full capacity and no longer available for use.

The failure to have an operating centre which is available and suitable, or has sufficient capacity for use as such, constitutes a material change to the licence in accordance with Section 26(1)(h) of the Act, and could potentially lead to the revocation of the licence. The Traffic Commissioner has asked that I write to you to put you on notice that he will be reviewing all licences which authorise the use of Red Lion Truck Stop as an operating centre. You are advised to take this opportunity to consider how you may ensure you meet the requirement to have an operating centre which satisfies the requirements of the Act. If you wish to seek authorisation of a new operating centre, you will need to apply to vary your goods vehicle operator’s licence. Variation applications can be made online using the Vehicle Operator Licensing system, details of which can be found at Manage your vehicle operator licence (website details given)”.

The company did not respond to the letter.

On 18^th September 2023, a Propose to Revoke letter was sent to the company (“the PTR letter”). It was headed “THIS LETTER REQUIRES URGENT ATTENTION” and was sent to the correspondence address for the company by recorded delivery and to the email correspondence addresses of both the company and the transport manager. The letter set out the chronology of the company’s failures to respond to DVSA and OTC communications and continued:

“In view of the above, the traffic commissioner is considering making a direction under Section 26(1) of the Act to revoke your operator’s licence on the following grounds:

under Section 26(1)(b) of the Act that the holder of the licence has contravened any condition attached to the licence, namely condition to notify the Traffic Commissioner of relevant changes, including the Operating Centre.

under section 26(1)(e) of the Act that when applying for the licence the licence holder made the following statements that were either false or have not been fulfilled:

i.

The Operator would abide by any conditions which may be imposed on the licence namely:-

i.

Cooperation with the DVSA.

ii.

The Operating Centre is where the vehicle is normally kept.

under section 26(1)(h) of the Act, that there has been, since the licence was issued or varied, a material change in any of the circumstances of the licence-holder, that were relevant to the issue or variation of the licence, namely Operating Centre has now become unsuitable.

•

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.

Section 27(1) of the Act states that the traffic commissioner shall direct that a standard licence be revoked if at any time if appears to him/her that:

a)

The licence-holder no longer satisfies the requirements of Section 13A(2) of the Act, namely that the operator has an effective and stable establishment in Great Britain, is of good repute and has appropriate financial standing.

In view of the evidence the traffic commissioner considers that you no longer satisfy the requirement to be an Operator with a stable and effective establishment, continue with good repute, maintain the required financial standing, and that the Transport Manager continues to meet Schedule 3 and explains the continued use of an unsuitable Operating Centre as identified in a letter dated 22/06/2023.

Furthermore, the traffic commissioner in accordance with Section 29(1) offers you the opportunity to request a public inquiry in order to offer further evidence as to why the licence should not be revoked. Any request for a public inquiry is to be made in writing to this office by 29/09/2023.

If no request for a public inquiry is received by this date your operator’s licence will be revoked. You will be required to return your operator’s licence, and disc(s) to this office on or before 06/10/2023.

You should note that the revocation of the licence will render unlawful the operation of vehicles for which an operator’s licence is required.”

The PTR letter did provoke a response. Ms Iordache wrote on 21^st September 2023 stating:

“I must start by admitting that I failed to attend the New Operator Seminar. I apologise for that. I am the Transport Manager and my husband is the director. We are parents to 3 very young children and childcare is all but inexistent (sic) but I am not seeking to excuse myself or the Director. I have begun to re-engage with the DVSA to organise attending another Seminar as soon as one is available.

I received the letter about the suitability of the operating centre dated 22/06/2023 and I have been looking for a new centre since. I still use the Red Lion and I did not understand from your letter that I have to stop using it or stop operating. However, I found new parking facilities and will be placing the advert in the newspaper during next week (ISO 39).

Regarding the other correspondence you mentioned, in relation to the DBA, I apologise, I missed those altogether. I found them in my spam after receiving your letter. I am willing to engage in the DBA and have written to express this.

I realise the above is a late response filled with excuses but the operation has a stable establishment in the UK and the imposition to find a new operating centres is such short notice is severe for a small family operator such as ourselves.

Please consider allowing us a chance to prove these were not intentional errors but rather misunderstandings, especially regarding the suitability of the operating centre.

Thank you for your time and diligence in dealing with this response!”

On 10^th October 2023, Ms Iordache attended the new operator seminar and evidence of financial standing was submitted to the OTC which was satisfactory. However, whilst Ms Iordache had indicated that an alternative operating centre had been identified and that a variation application would be advertised, no variation application was submitted. In his decision upon the application for a stay submitted by the company following revocation, the TC considered that this was difficult to understand given the attendance on the on-line seminar on 10^th October 2023.

On 19^th October 2023, the company’s operator’s licence was revoked with effect from 23.45 on 1^st November 2023. The letter repeated the second and third paragraphs of the PTR letter save that in its reference to section 27(1) of the Act, good repute and financial standing were omitted as reasons for mandatory revocation.

There then followed numerous telephone conversations between Ms Iordache and the OTC. She stated that she did in fact have a new operating centre, the agreement having been signed on 23^rd September 2023. She had not submitted a variation application in respect of it due to the PTR process taking place which she now realised was a mistake. She emailed a “To whom it may concern” document signed by the director of SDE Haulage Ltd in Northampton stating that permission had been given to the company to use premises located on the Aaron Road Industrial Estate in Peterborough as an operating centre for three vehicles and three trailers for “the agreed fee”. Shortly thereafter, the VOL was updated with an application for a new operating centre. Ms Iordache requested that the TC review his decision.

On 20^th October 2023, the TC’s response was set out in a letter:

“The Traffic Commissioner has stated …

“this case was concerned with more than a delayed application for a new OC. The operator failed to respond appropriately and has only now made contact. The new OC has yet to be granted and there has still be no assessment by DVSA (sic). The operator and TM should know the basic requirements of an O/L. Given the above, it cannot be said that the decision to revoke was plainly wrong. It must now decide how to proceed. The operator has the run down period to lodge a new application and obtain interim authority”

This means that the revocation will be in place from 23.45 hours on 1 November 2023.

The Traffic Commissioner feels that this run down period until 1 November 2023, will give you opportunity to submit an new application (sic) for a new Operators Licence, with a request that consideration be given for the issuing of an interim licence to allow you to operate your vehicle …”.

Rather than submit a new application for an operator’s licence, the company appealed on the following grounds:

(i)

The Traffic Commissioner was wrong to make a finding that the operator no longer satisfied the requirement for a stable and effective establishment.

(ii)

The Traffic Commissioner had no power to conduct a review of an existing operating centre at this stage in the licence, when it was available and being used.

(iii)

The Traffic Commissioner was wrong to find a breach of a specific licence condition regarding DVSA co-operation.

(iv)

The Traffic Commissioner was wrong in failing to offer a public inquiry (we take this to mean “failing to hold a public inquiry”).

The grounds above were expanded by Ms Newton in her skeleton argument.