[2024] UKUT 419 (AAC)

This tribunal can only interfere with a decision of a Traffic Commissioner on appeal if satisfied that the decision was “wrong”, as explained by the Court of Appeal in Bradley Fold Travel Limited v Secretary of State for Transport [2010] EWCA Civ 695. The court adopted what was said by Laws LJ in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 at [44]:

“…. The first instance decision is taken to be correct until the contrary is shown.… An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one.… The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category.”

Mr Lyle submitted to us that he considered it was unfair that he had had the operator’s licence revoked in the circumstances we have described. He stressed the challenges for any new, small business, including the challenge of finding and keeping a transport manager for a small business involving public service vehicles. He said that he had found the completion of the application form for the replacement transport manager difficult, and requiring considerable engagement with the Commissioner’s Office. He felt hard done by because (he said) he had lost the vital operator’s licence – upon which the whole business was entirely dependent – simply because a signature had been omitted from one of the forms.

However, we do not consider that any of Mr Lyle’s submissions (in which we include everything that Mr Lyle has put before us) suggests that the Commissioner’s decision to revoke the licence was arguably wrong.

Given that the information required for assessment of the proposed new transport manager was not provided to the Commissioner within the three month period of grace, the Commissioner’s decision that she was not satisfied that the Appellant had a transport manager who was professionally competent in accordance with the statutory criteria – and, hence, that the Appellant was professionally competent – is unimpeachable. In those circumstances, the Commissioner was required by statute (section 17 of the Act) to revoke the licence. The Appellant made no application for an extension of the period of grace; and the six month period has now long since elapsed. Having been regularly revoked, there is no provision by which that revocation can be undone.

Whilst we have some sympathy with Mr Lyle who has been attempting to set up a small business in a substantially regulated sector, an operator’s licence is part of the regulation of an important area of public activity; and it has obligations attached. Reflecting the statutory guidance quoted at paragraph 4 above, it was made clear by the Commissioner in the letter of 16 May 2024 that, if the specifically requested information was not provided by the end of the period of grace (1 June 2024), then the operator’s licence would be revoked. That information was not provided by that time, or indeed before the revocation letter on 13 June 2024. The licence revocation in default had therefore been well posted. Mr Lyle did not take heed of the warnings as he should have done.

For those reasons, we consider the Commissioner’s decision was not plainly wrong; indeed, on the evidence before her, we consider that it was plainly right. The failure to provide the required application information in time is sufficient to determine this appeal is determinative. That is the basis upon which we dismissed the appeal at the end of the oral hearing.

In the light of the uncertainty as to whether the Commissioner has granted a stay of the revocation pending this appeal, we delayed the dismissal of the appeal coming into effect until 4pm on 7 January 2025, for this reason. If the Commissioner has granted a stay on the licence revocation (or some other form of permission to continue to operate a public service vehicle business), then that stay or permission will continue until 7 January 2025, thereby giving Mr Lyle and the Appellant company reasonable time to wind up its business insofar as it involves the operation of public service vehicles in an orderly manner. It is not open to us otherwise to grant a stay. On the other hand, if the Commissioner has not granted any stay or lawful permission, then our order does not alter that status quo. The letter of 13 June 2024 advises the Appellant of some of the potential consequences of running such a business without a licence, stay or other lawful permission; and, at the close of the hearing, we advised Mr Lyle and the Appellant to seek legal advice before continuing their operations in these circumstances. We reiterate that advice here.