[2025] UKUT 146 (AAC)

Mr Daves argued that this is a case, as in Atbus, where the circumstances dictated that a public inquiry should have been held in accordance with the principles of natural justice. The Appellant is a long established company and operator. It is part of a significant group of companies and, as its filed accounts show, of substantial means. There is no clear evidence of concerns that would be likely to justify revocation other than the issue with the nomination of a new TM. The only previous history noted in the papers provided by the Office of the Traffic Commissioner (Footnote: ¹⁰) is a preliminary hearing called in July 2024, which was resolved with no further action necessary which, he submitted, demonstrated that any concerns that might have arisen were assuaged without the need even to issue a warning .

Mr Davies said that whilst Mr Fyvie has, in his statement, accepted that there are steps he should have taken to check that attending at the Post Office was the end of the process/that he should have submitted a letter, and therefore the process of nominating him cannot be regarded as free from criticism (as in Atbus), the Appellant had made a bona fide application to nominate him supported by his certificates of professional competence in accordance with Article 21 of the 2009 Regulation.

Mr Davies noted that Mr Fyvie’s nomination, and the effect this had on any concerns as to road safety, was explicitly recognised by the Office of the Traffic Commissioner when considering the stay application (Footnote: ¹¹).

This was, Mr Davies argued, a matter of a communication error as expressed by its director, Mr Clarke (Footnote: ¹²), for an operator that had at the time three qualified Transport Managers in its operation. In fact, ECL had four TMs Mr Davies stated, because Mr Clarke is also a qualified TM. Those are the kind of material facts, he said, that the Appellant would have been in a position to advance had the decision been taken by the Traffic Commissioner, in accordance with the provisions of natural justice, to convene a PI rather than proceeding straight to the revocation of the licence. Indeed, as Mr Fyvie himself notes in his statement, a simple email or phone call from the Office of the Traffic Commissioner would have immediately rectified matters.

In all the circumstances, Mr Davies invited the Upper Tribunal to allow the appeal and to remit the matter for a public inquiry .