[2025] UKUT 146 (AAC)

Further, or in the alternative, Mr Davies submitted, the Appellant contends that the application of the ‘new operating instructions’ (indicated by a member of the OTC staff to Ms Bell) represents a disproportionate interference with its property for the purposes of Article 1 of the First Protocol. The new operating instructions appear to operate in a way that is contrary to decision of the Upper Tribunal in Atbus insofar as it precludes any inquiry into the wider circumstances and simply requires a blunt instrument approach, i.e.: an operator no longer satisfies the mandatory requirement pursuant to section 14ZA of the 1981 Act and therefore any licence must be revoked without further enquiry. The Appellant would contend that such an approach removes the requirement for the Traffic Commissioners to consider the issue of proportionality prior to making a decision and, therefore, negates the need to ask the long-established question, “is the conduct such that the operator ought to be put out of business?”. Such a removal does away, submitted, with the need to conduct a fair balancing exercise in accordance with Article 1 of the First Protocol.

Mr Davies said he was not suggesting that the need for a Traffic Commissioner to ask the question will arise in every case: there will be many where, having sent the “proposed to revoke” letter, no response is received or there is no indication from the operator that it is trying to remedy the situation. In such circumstances, it would plainly not be disproportionate to proceed with revocation without further ado.

However, considering circumstances such as have arisen in this matter, if the new operating instructions are applied, the Bryan Haulage question can only ever be answered by the Traffic Commissioners in the positive and it will always result in operators being put out of business.

The Upper Tribunal is respectfully invited to find that the application of the new operating instructions led to an outcome in this case that is plainly wrong and to remit the matter for a public inquiry.