Neutral Citation Number: [2012] UKUT 243 (AAC)

Appeal No.  T/2012/21

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

TRAFFIC COMMISSIONER for the South East and Metropolitan Traffic Area Dated 17 April 2012

 

 

 

Before:

H. H. Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken Member of the Upper Tribunal

Patricia Steel Member of the Upper Tribunal

 

 

Appellant:

W B M SCAFFOLDING Ltd.

 

 

 

 

Attendances:

For the Appellant: Mr Westley Brown

 

 

Heard at: Victory House, 30-34 Kingsway, London

Date of hearing: 19 June 2012

Date of decision: 16 July 2012

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

 

 

 

 

SUBJECT MATTER:-   Financial Standing;  Miscellaneous, failure to respond.

 

 

CASES REFERRED TO:- None

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for the South East and Metropolitan Traffic Area to revoke the restricted goods vehicle operator’s licence held by the Appellant on the ground that there had been a material change in the circumstances of the licence-holder, namely that the Appellant might not be of appropriate financial standing.

2.          The factual background to this appeal appears from the documents and the Traffic Commissioner’s decision and is as follows:-

(i)                   The Appellant is the holder of a restricted goods vehicle operator’s licence authorising 3 vehicles.  The correspondence address which it provided to the Office of the Traffic Commissioner, (“OTC”), was 19D Blackwall Road North, Willesborough, Ashford, TN24 0NU.

(ii)                 In August 2011 the Deputy Traffic Commissioner directed that a review of the Appellant’s finances should take place later in 2011.  On 14 December 2011 the OTC wrote to the Appellant, requesting that original bank statements, for August, September and October 2011, in the name of the Appellant, should be provided by 28 December 2011.  The Appellant was reminded that the expectation was that these bank statements would show an average balance of £6,500 over this period.  It was warned that regulatory action might be taken if it failed to comply with this request.

(iii)                On 6 March 2012 the OTC again wrote to the Appellant.  This letter was sent to the correspondence address and to two other addresses.  The letter warned that the Traffic Commissioner had been informed that the bank statements requested in December 2011 had not been received and that he was considering making a direction to revoke the licence on the ground that there had been a material change in circumstances.  The Appellant was informed of its right to request a Public Inquiry and again required to provide evidence of its financial resources by 27 March 2012.  It was warned that in the absence of any request for a Public Inquiry and in the absence of financial evidence its operator’s licence would be revoked.

(iv)                Two versions of this letter, both sent recorded delivery, were returned to the OTC, marked ‘not called for’.  One appears to have been sent to the correspondence address, while the other was sent to 19A Blackwall Road North.

(v)                 On 17 April 2012 the Appellant was informed that in the absence of any written representations or any request for a Public Inquiry the Traffic Commissioner had revoked the licence, in chambers, on the ground that there had been a material change in the circumstances of the licence holder.

(vi)                On 2 May 2012 the Appellant filed a Notice of Appeal against this decision.  The address given on the Notice of Appeal is probably 19a Blackwall Road North, though it could be interpreted as 19d.  However the letter to the Tribunal, of 20 April 2012, is on WBM Scaffolding Ltd. headed notepaper, and the address is clearly 19A Blackwall Road North.  This letter is annexed to the Notice of Appeal to serve as the grounds of appeal.  The main ground of appeal was that the licence had been revoked without any prior notice and without any opportunity to attend a Public Inquiry.  The letter went on to set out background information designed to show the nature of the business and the fact that it was successful and profitable.  It also explained that while large sums of money were not kept in the bank account the Appellant did have ready access to cash as and when it was needed.  The letter went on to question why the licence of a profitable business had been revoked without notice.

3.           At the hearing of the appeal Mr Westley Brown, a director of the Appellant company appeared in person to represent the Appellant.  He explained that in September 2011, because of the success of the company, it applied to increase the number of vehicles authorised.  The financial evidence provided proved insufficient and the application was refused.  Mr Brown went on to explain that the Appellant has since re-financed its operation, with the result that it is in a position to establish appropriate financial standing.

4.           We had to explain to Mr Brown that as a result of the terms of paragraph 17(3) to Schedule 4 to the Transport Act 1985 Parliament has prevented us from: “taking into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal”.  In other words we cannot have regard to re-financing which has taken place after the date of the Traffic Commissioner’s decision.  Even if it took place beforehand Mr Brown would have had to persuade us that the test for the admission of fresh evidence was met.  It seems to us that this would have been an impossible task because the Tribunal has consistently held that it will not admit fresh evidence which could and should have been placed before the Traffic Commissioner.

5.           The test which we must apply is to consider whether, on the material available, the decision of the Traffic Commissioner was ‘plainly wrong’.  The position was that the OTC had written to the Appellant, not just at the correspondence address, but to other addresses as well, including 19A Blackwall Road North, the address on the headed notepaper.  No reply was received to any of these letters and two were returned ‘not called for’.

6.           Giving notice in relation to Public Inquiries is governed by Schedule 4 to the Goods Vehicles (Licensing of Operators) Regulations 1995, (“the 1995 Regulations).  We accept, of course, that this case never reached the stage where it was necessary for the OTC to give notice of a Public Inquiry but in our view it is appropriate to have regard to these provisions when considering what happened in the present case.

7.           ‘Giving of notices’ is covered by paragraph 6 of Schedule 4 to the 1995 Regulations, the relevant parts of which provide as follows:

“6.—(1) A notice required or authorised to be sent to a person under this Schedule may be effected by—

(a)  delivering it to him at an address which is his proper address; or

(b)  sending it to him by post to an address which is his proper address; or

(c) … .

(2) A notice sent under paragraph (1) shall, for the purposes of this Schedule, be deemed to have been sent when it would have been delivered in the ordinary course of post notwithstanding that—

(a)  the notice was returned as undelivered or was for any reason not received; or

(b)  was in fact delivered or received at some other time.

(3) Any such document may—

(a)  in the case of a body corporate, be sent to the secretary or clerk of that body;

(b)  … ;

(c) … .

(4) For the purposes of this paragraph and section 7 of the Interpretation Act 1978, the proper address of any person is his last known address (whether of his residence or a place where he carries on business or is employed) and also any address applicable in his case under the following provisions—

(a)  in the case of a body corporate, its secretary or its clerk, the address of its registered or principal office in the United Kingdom;

(b) … .

(5) Where a person has in the licence-holder’s application notified the traffic commissioner of an address, or, subsequently notified a new address under regulation 25, at which documents may be given to him for the purposes of correspondence that address shall also be his proper address for service for the purposes mentioned in sub-paragraph (3) or, as the case may be, his proper address for those purposes in substitution for that previously notified”.

8.           In our view the OTC did all that that paragraph 6 requires when seeking further financial information from the Appellant and, in particular it was entitled to proceed on the basis that letters sent to the correspondence address given on the application were deemed to have been sent when they would have been delivered in the ordinary course of the post.  In those circumstances the Traffic Commissioner cannot be criticised for proceeding on the basis that the Appellant had failed to respond to requests for financial information, nor for concluding that there had been a material change in the circumstances of the licence-holder.

9.           We were impressed by the sensible and moderate way in which Mr Brown received the news that we were obliged to dismiss the appeal.  He explained that he was not operating HGV’s under a stay but that, instead he was conducting the business using vehicles weighing no more than 3.5 tonnes in gross plated weight.

10.        For these reasons the appeal must be dismissed.

11.        We advised Mr Brown that if he wished to revert to using HGV’s he must make a fresh application for a licence and that he would be well-advised to discuss the Appellant’s position with the OTC so that he knows, precisely, the information which the Traffic Commissioner will require if the application is to be successful.

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals.

16 July 2010