Neutral Citation Number:[2012] UKUT 166 (AAC) Appeal No.  T/2012/03

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL FROM THE DECISION OF LIZ PERRETT,

DEPUTY TRAFFIC COMMISSIONER for

the NORTH EASTERN TRAFFIC AREA dated 28 December 2011

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

 

 

Appellant:

MGU HAULAGE & TRANSPORT LIMITED

 

 

Attendances:

For the Appellants: No appearance

 

 

Heard at: Victory House, 30-34 Kingsway, London, WC2B 6EX

Date of hearing: 16 April 2012

Date of decision: 4 May 2012

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal be DISMISSED

 

 

 

SUBJECT MATTER:-   Failure to advertise application within time limit specified in s.11(2) of The Goods Vehicles (Licensing of Operators) Act 1995

 

 

CASES REFERRED TO:- None

 

 

 

 

REASONS FOR DECISION

 

 

1.           This was an appeal from the decision of the Deputy Traffic Commissioner for the North Eastern Traffic Area made on 23 December 2011 and communicated on 28 December 2011, refusing the Appellant’s application for an operator’s licence under s.11(1) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).

 

2.           The factual background appears from the documents and the decision letter and is as follows:

 

(i)              In an undated application received by the Central Licensing Office (“CLO”) on 1 November 2011, the Appellant applied for a standard national operator’s licence authorising one vehicle.  The purpose of the application was to enable the Appellant to operate a cement mixer under a franchise agreement with Hanson Quarry Products Limited. 

(ii)             By a letter dated 21 November 2011, Adam Parker of the CLO wrote to the Appellant’s correspondence address to inform the Appellant that further documentation was required before the application could be determined.  He requested:

a)    Confirmation that the vehicle to be specified on the licence (which was currently specified on another licence), was to be removed from that other licence upon the grant of the Appellant’s application;

b)    A completed and signed TM1 form;

c)     The original CPC certificate of the Appellant’s nominated transport manager;

d)    A copy of the Appellant’s certificate of incorporation;

e)    A copy of a fresh advertisement published no later than 25 November 2011, the advertisement submitted with the application being unacceptable by reason of it having  been published on 25 August 2011 which was more than twenty one days prior to the application having being submitted.

The Appellant was given until 5 December 2011 to submit the documentation.

(iii)            On 22 November 2011, Mr Ghulam Ijaz, the director of the Appellant company wrote to Mr Parker, acknowledging receipt of his letter and requesting more time in which to advertise his application as the chosen newspaper was unable to publish the advertisement for two weeks.  Further, Mr Khan, the Appellant’s Transport Manager, was unable to produce the original of his CPC certificate and only had a copy in his possession.  Mr Ijaz asked for guidance on this latter point.

(iv)           By a letter dated 5 December 2011, Mr Parker wrote again to the Appellant, to all known addresses (according to the New Application Referral form although not evidenced in the papers).  He extended the deadline for the submission of the documentation to 16 December 2011.  The letter was sent by first class post and recorded delivery. 

(v)             Mr Ijaz responded by email on 13 December 2011 informing Mr Parker that he had just seen his letter of 5 December, that the deadline for advertising the Appellant’s application had been missed and he was awaiting the return of the TM1 form from his Transport Manager.  In the circumstances he requested an extension of time to submit all of the documents.

(vi)           On 16 December 2011, the application was referred to the Deputy Traffic Commissioner with a recommendation that it be refused because of the Appellant’s failure to advertise its application in accordance with s.11(1) of the Act.  The Deputy Traffic Commissioner refused the application on 23 December 2011 and this was communicated to the Appellant on 28 December 2011.

(vii)          The Appellant appealed upon the ground that more time was needed to submit the outstanding documentation “due to the festive period”.  In a covering letter, Mr Ijaz accepted that he had been sent a letter by recorded delivery which gave him a deadline of 13 December 2011 to submit the outstanding documents but he did not sign for the letter and as a result had missed the deadline.  He had contacted the newspaper and was advised that he could not place an advertisement in the newspaper until after Christmas. He had made attempts to contact Mr Parker but the telephone number was busy.  He had therefore sent an email to Mr Parker on 13 December 2011 requesting an extension of time.  He asked that the Tribunal grant him permission to submit the newspaper advertisement so that his application could be processed as he had invested a lot of time and money in the application.

(viii)         As appears to be the practice when an appeal is lodged with the Upper Tribunal, the decision of the Deputy Traffic Commissioner was reviewed, this time by another Deputy Traffic Commissioner, Lester Maddrell.  He determined that the requirement  that an application for a licence must be advertised within the period of 21 days before the date on which the application is made and ending 21 days after that date as set out in s.11(2) of the Act was a mandatory requirement and that failure to comply with the section must result in the refusal of the application.  The Deputy Traffic Commissioner confirmed the decision of his colleague.

 

3.           At the hearing of this appeal, which was listed for 12.30hrs and called on at about 16.00hrs, the Appellant failed to appear.  In the absence of any communication from the Appellant, the Tribunal proceeded to determine the appeal in its absence. 

 

4.           We agree with the interpretation of s.11 of the Act as applied by both Deputy Traffic Commissioners.  Unless an advertisement is placed in an appropriate newspaper in the period beginning 21 days before the date the application is submitted and ending 21 days after that date, then the application for a licence must be refused.  There is no discretion to extend the time limit set out in that section or indeed in any other section.  In the absence of evidence that an advertisement has been placed within that time limit, then this appeal must fail.  Of course, that was not the only documentation that remained outstanding as at 13 December 2011, the Appellant having failed to submit any of the documents which were first required on 21November 2011.  This appeal is dismissed.

 

 

Her Honour Judge J Beech

4 May 2011