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whether the requirements of sections 12 A and 12C are satisfied; and
whether the requirements of sections 12A and 12C are satisfied; and
if the Department thinks fit, whether the requirement of section 12D is satisfied.
On an application for a restricted licence the Department must consider—
whether the requirements of sections 12B and 12C are satisfied; and
if the Department thinks fit, whether the requirement of section 12D is satisfied.
Subsections (1) and (2) are subject to section 10 (publication of application), if applicable, and] 47(2) (payment of application fee).
In considering whether any of the requirements of sections 12A to 12D are satisfied, the Department must have regard to any objection duly made under section 11(1)(a) in respect of the application.
If the Department determines that any of the requirements that it has taken into consideration in accordance with subsection (1) or (2) are not satisfied, it must refuse the application.
In any other case the Department must grant the application, unless either of the following provisions applies—
(a)section 13(2) (power to refuse application on environmental grounds);
(b)section 47(2) (power to refuse to proceed until fee is paid).”
“Variation of operators' licences
16—(1) Subject to section 17, on the application of the holder of an operator's licence, the Department may vary the licence by directing—
that additional motor vehicles be specified in the licence or that any maximum number specified in it under section 5 be increased;
(b)…
(c)…
(d)…
(e)…
(f)…
in the case of a heavy goods vehicle that a new place be specified in the licence as an operating centre of the licence-holder, or that any place cease to be so specified;
(h)…
(i)…
(j)…
(k)…
An application for the variation of a licence under this section shall be made in such form and include such declarations and information as may be prescribed.
The Department may require an applicant to furnish such other information as it considers necessary for dealing with the application.
(4)…
(5)…
Where notice of an application is published under subsection (4), the following provisions, namely—
…
…
sections 12 to 12E, and
…
shall, with any necessary modifications and subject to section 18, apply in relation to that application as they apply in relation to an application for an operator's licence of which notice is published under section 9(1).”
Section 12C sets out the requirements for a standard and restricted licence, of which s.12C(5) is particularly relevant to this case:
Requirements for standard and restricted licences
12C.—(1) The requirements of this section are that it must be possible (taking into account the Department’s powers under section 14(3) to issue a licence in terms that differ from those applied for) to issue a licence in relation to which—
(a)in the case of a light goods vehicle licence, subsections (2) to (4) will apply, or
(b)in the case of a heavy goods vehicle licence, subsections (2) to (6) will apply.
There must be satisfactory arrangements for securing that the following are complied with in the case of vehicles used under the licence—
(a)Article 56 of the Road Traffic (Northern Ireland) Order 1981 (drivers’ hours); and
(b)the applicable Community rules, within the meaning of Article 2 of that Order.
There must be satisfactory arrangements for securing that vehicles used under the licence are not overloaded.
There must be satisfactory facilities and arrangements for maintaining the vehicles used under the licence in a fit and serviceable condition.
A heavy goods vehicle licence must specify at least one place in Northern Ireland as an operating centre of the licence-holder, and each place so specified must be available and suitable for use as an operating centre of the licence-holder (disregarding any respect in which it may be unsuitable on environmental grounds).
The capacity of the place specified as an operating centre (if there is only one) or both or all of the places so specified taken together (if there is more than one) must be sufficient to provide an operating centre for all the heavy goods vehicles used under the licence.
In considering whether the requirements of subsections (2) to (4), or (2) to (6),are satisfied, the Department may take into account any undertakings given by the applicant (or procured by the applicant to be given) for the purposes of the application, and may assume that those undertakings will be fulfilled.
In considering whether subsection (5) will apply in relation to a heavy goods vehiclelicence, the Department may take into account any conditions that could be attached to the licence under section 20(1)(a) (conditions of licences) and may assume that any conditions so attached will not be contravened.
In considering whether subsection (5) or (6) will apply in relation to a heavy goods vehicle licence, the Department may take into account whether any proposed operating centre of the applicant would be used—
(a)as an operating centre of the holders of other heavy goods vehicle 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 goodsvehicles used under the licence.
The Appellant had applied to vary the operating centre named on the operator’s licence, and had applied to increase the vehicle authorisation (see s.16(1)(a) and (g)). While no mention was made of the outcome of the request to increase authorisation, the DfI refused the application to vary the operating centre on the basis that it was deemed both unsuitable and unavailable (see the detailed reasons outlined at paragraph 7 above which triggers both elements of s.12C(5)).
In the letter stating that the application had been refused, the DfI advised the Appellant that he could re-apply and explained, in basic terms, what the was needed to do so. The letter also set out his right of appeal. It was open to the Appellant to either re-apply or to appeal to the Upper Tribunal. He chose the latter.
At the appeal hearing, the Appellant explained that he had a business in the Republic of Ireland with a number of vehicles and an office from which to manage the operation. He sought to undertake work in mainland UK hence he decided to increase the authorisation on his licence and to locate a more convenient operating centre which would also house the additional vehicles. After the DfI had refused his variation application, the Appellant was unsure whether to renew it, but he had subsequently formed the view that his original decision to vary his operating centre was the correct one. It was highlighted by the panel at the hearing that the DfI had indicated what was required from him to pursue the application. It was explained that the Upper Tribunal were not in a position to grant or refuse the variation application but rather to determine whether the DfI’s decision to refuse the application was, in the circumstances, “plainly wrong”.
It is an agreed fact that the ground surface within the proposed operating centre site needed to have work done to avoid a safety issue by the HGV vehicles bringing mud and debris onto the public road when moving onto and off the site. The Appellant expressed his desire, at the hearing as well as on the appeal form, to have this safety issue corrected but felt he could not do the required ground works as he was not the owner of the site. Additionally, without the prior approval of his application by the DfI, it was potentially a waste of time and money.
Equally, it is an agreed fact that the Appellant does not have a formal agreement in place with the site owner that he may rent the site for the purposes of an operating centre. He explained at the hearing that he had verbally agreed use of the site with the owner. However, the DfI could not be assured of the availability of the site without something in writing from the owner, hence it could not, in law, approve the application (see s.12C(5)). While the DfI had acknowledged that the Appellant need not have signed a formal agreement in place in advance of approval of the site, the Appellant
had not been made aware of what might have satisfied the DfI. For example, a letter from the site owner to confirm the arrangement pending the approval of the application, may have been sufficient for the application to proceed.