[2024] UKUT 325 (AAC)

We find that the DfI was not “plainly wrong” in refusing the variation application. The Appellant had not satisfied the DfI that the proposed operating centre site was suitable or available as required under s.12C(5). However, by simply refusing the application, the Appellant was left with a lack of understanding of how to satisfy the requirements when he was not the owner of the site. Instead of creating this stalemate situation, it was within the powers of the DfI to, for example, make an interim grant of the application on the conditions that the surface of the site was made safe, that parking spaces were allocated for the proposed vehicles, and that a written agreement was put in place between the site owner and the Appellant to confirm it was available for his use (see ss.12(7) and (8) of the Act which permits such a course of action). This would have better informed the Appellant, who has clearly been keen to comply, on how to meet the regulatory requirements for the variation of operating centre, while also providing the DfI with some assurance that if the conditions were not met, the application could still ultimately be refused. Such a course of action would have facilitated better cooperation and communication between the Appellant and the DfI to put the variation in place. It would have also avoided the delay that has been caused by the appeal process, which was a legitimate course of action for the Appellant to take.

It is only fair to say that we would have responded differently in the circumstances of this application, but that is not the test to be applied on appeal. The refusal of the application was within the remit of options available to the DfI and we cannot therefore say that it was plainly wrong. For these reasons, the appeal is dismissed.