[2024] UKUT 133 (AAC)

The notice requirements of the 2001 Regulations may be satisfied without service of the notice required by regulation 9(1)(b) on the actual lawful owner of a detained vehicle. This is due to the interaction of the 2001 Regulations’ definition of ‘owner’ and the Regulations’ notice requirements.

The 2001 Regulations’ definition of ‘owner’, rather than simply referring to a vehicle’s lawful owner, refers to “the person who can show to the satisfaction of an authorised person [DVSA official] that he was at the time of its detention the lawful owner”. If a person satisfies a DVSA examiner that, at the time of a vehicle’s detention, he was its lawful owner then, for the purposes of the Regulations, he is the owner. This does not mean the person is necessarily the lawful owner, in fact, because the Regulations do not declare ownership.

The undisputed facts of this case include:

All of the above events occurred before the DVSA gave the notice required by regulation 9(1)(b) of the 2001 Regulations. It seems to us quite clear that it was shown to the DVSA vehicle examiner’s satisfaction that the owner of the vehicle was Scaff Co (Scaffolding Company) Ltd. It cannot be said that the DVSA vehicle examiner acted irrationally when he determined that it had been shown to his satisfaction that Scaff Co (Scaffolding Company) Ltd was the owner of the detained vehicle. That meant, for the purposes of the notification requirements of the 2001 Regulations, Scaff Co (Scaffolding Company) Ltd was the owner of the detained vehicle. On the information available to the DVSA, it was right to proceed on the basis that the “registered or principal office”, as referred to in the definition of ‘proper address’ in regulation 22(6)(c), of the owner was Unit 17 Thorpe Hill Farm. The DVSA examiner had been told by the driver that that was the owner’s address and it matched the address provided by Scaff Co (Scaffolding Company) Ltd on its recent application for a restricted operator’s licence. We are satisfied that, in this case, the notice requirements of regulation 9(1)(b) were properly complied with.

The 2001 Regulations’ definition of ‘owner’ creates the possibility that, as Mr Rush says happened here, the notice required by regulation 9(1)(b) might not be served on the actual lawful owner of a detained vehicle. The potential injustice that may result is probably one reason why regulation 23 confers power on a Traffic Commissioner to extend time for making an application for return of a detained vehicle.

We now turn to the key issue on this appeal, which is whether the Traffic Commissioner erred in law or fact when he refused to exercise his discretion to admit a late application for return of the detained vehicle.

We are satisfied that the Commissioner correctly understood the relevant facts when considering whether to exercise his discretion to admit a late claim for return of the vehicle. Indeed, it is not argued that he misunderstood the relevant facts.

We are also satisfied that the Commissioner’s refusal to admit the Appellant’s late application was free of any error of law. The Commissioner correctly directed himself in accordance with the Transport Tribunal’s decision in Excel A-Rate Business Services Ltd (2005/471). We agree with the Commissioner that the merits of the claim for return of the vehicle were weak. Mr Rush said he was “under the impression that we could move our own goods without a operator licence because it’s not for hire or reward”. In other words, he claimed not to have known that the prohibition on an unlicensed operator using a goods vehicle on a road for the carriage of goods also applied to use of a vehicle “in connection with any trade or business” (see section 2(1)(b) of the 1995 Act). Mr Rush did not argue that the vehicle had been used without his knowledge as director of the company which owned the vehicle. It is the responsibility of the owner of a goods vehicle to acquaint itself with the legislation concerning the lawful use of such a vehicle. Since a company of which Mr Rush was a director had recently applied for a restricted operator’s licence under the 1995 Act, the Traffic Commissioner was bound to approach Mr Rush’s argument with some scepticism. We also agree with the Commissioner’s findings that the explanation given for the delay in making a claim was not persuasive. The lawful owner of the vehicle knew it had been detained on 9 January 2023, given the driver’s contact that day with his employer whom the driver also told the examiner was the vehicle’s owner. Despite that, the owner did nothing until 13 February 2023 on which date its representative informed the DVSA that their regulation 9 notice had been sent to the wrong address. Even then, the owner waited more than a week before submitting a late claim for the vehicle’s return. We agree with the Commissioner that the owner’s explanation, such as it was, provided a weak justification for the delay.

Since we can identify no error of law or fact in the Commissioner’s refusal to exercise his discretion to accept the late application for return of the vehicle, we must dismiss this appeal.

Finally, we apologise for the delay in giving this decision. Initially, due to an administrative oversight this case was not marked on the Upper Tribunal’s case management system as ready for decision. And, subsequently, the judge was absent from duties while recovering from injuries sustained in an accident.