Cornwall Busways Ltd (Transport - Traffic Commissioner : Traffic Commissioner cases) [2015] UKUT 0314 (AAC)

IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
[2015] UKUT 314 (AAC)Venue TRAFFIC COMMISSIONER APPEALS, ON APPEAL from the DECISION of Nick Jones TRAFFIC COMMISSIONER sitting in the West of England
Between
Cornwall Busways Ltd (Transport - Traffic Commissioner : Traffic Commissioner cases)
Date 13 January 2015
[1]This is an appeal from the decision of a Traffic Commissioner sitting in the West of England to order the Appellant to pay a financial penalty of £300 under s. 155(1A) of the Transport Act 2000, (“the 2000 Act”), and to revoke the operator’s licence held by the Appellant, with immediate effect.[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 standard international PSV operator’s licence authorising 3 vehicles. The licence commenced on 23 April 2014. The sole director of the Appellant company is Nicholas Siddaway, (“NS”).(ii) On 10 July 2014 the Appellant wrote to the Central Licensing Office, (“CLO”) stating that the registered service PH1127958/1 St Austell to Bodmin, (“Service 29”), was cancelled. The letter explained that it had taken the CLO 18 days to process the application for this service earlier in the year and that the Appellant had then had to wait for the 56 day notice period to expire. It went on to state that during that time a competitor, Western Greyhound:
“tacked a new 528 to disrupt our registration”
. The Appellant complained that this service had not been requested by the Council and that together with a variation to service 529 it had been ‘fast-tracked’ despite the fact that it did not meet the criteria. The letter went on to state that:
“the result is that it has rendered the 29 as a service without hope even though it serves villages and communities the 528 does not”
. The letter then set out a number of detailed criticisms of this service, intended to show that it was being operated illegally. It continued:
“All in all the registration is virtually inoperable and unviable and as such we have withdrawn it without notice because it is to us obvious that unless we wanted the drivers to tell us the information would have leaked from the authorities like a sieve. The result of leaving it would be the entire business will fold” . (iii) The letter of 10 July 2014 was received by the CLO on 15 July 2014. The Appellant was advised by email that the criteria for a short notice cancellation did not appear to have been met. NS replied in three emails sent on behalf of the Appellant. The first repeated the matters already summarised above. The second set out the figures for the registrations and variations made by Western Greyhound in 2014, most of which were made on short notice. The third made a new criticism following on from information that the County Council had, in fact, supported the variation application made by Western Greyhound. NS went on to state that had the Appellant known in May 2014 what it now knew the application to register service number 29 would have been abandoned. (iv) On 24 July 2014 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant stating that the application for short notice cancellation had been refused and that the revised date for cancellation of services 29 and 29B was 9 September 2014. The Appellant was reminded that the service must continue until that date and that if it did not the Appellant risked disciplinary action. (v) On 10 December 2014 the OTC wrote to the Appellant calling the company to a public inquiry, which was to be held on 7 January 2015. The letter set out two specific areas of concern namely: (i) the failure to operate a local service registered under s. 6 of the Public Passenger Vehicles Act 1981 and (ii) the possibility that there had been a material change in circumstances, namely financial difficulties caused by the continued operation of the registered service. The letter went on to set out the Traffic Commissioner’s powers, including the power to impose a penalty and the power to revoke the licence. The Appellant was advised to prepare evidence for the Public Inquiry, including evidence of financial standing by showing that it had had access to an average of £14,800 over the previous three months. (vi) On 22 December 2014 the Appellant wrote to the OTC to advise that it would not be attending the Public Inquiry because it was surrendering the operator’s licence with effect from 2359 on Friday 2 January 2015. The letter explained that had the Appellant continued to operate service 29 the company would have sustained losses of £5,000 per week, which would have placed the company at risk. The letter set out a number of complaints, including allegations of bias, and threats, which it is unnecessary to repeat, given the lack of supporting evidence. (vii) On 29 December 2014 the OTC wrote to the Appellant to inform it that the Traffic Commissioner who was due to conduct the Public Inquiry had rejected the surrender of the Appellant’s operator’s licence. The letter went on to state that the Public Inquiry would proceed on 7 January 2015, whether or not the director of the Appellant company attended. (viii) On 30 December 2014 NS emailed the OTC saying: “We very much doubt whether the Commissioner has the right to reject an operator surrendering their licence, and we will NOT accept this decision”
. NS made it clear that the Appellant did not intend to attend the Public Inquiry nor would it be represented. (ix) Notwithstanding the indication that the Appellant would not attend the Public Inquiry, on 30 December 2014 the OTC sent a complete copy of the Traffic Commissioner’s briefing papers to the Appellant. (x) On 2 January 2015 the Appellant wrote to the OTC enclosing a completed application to surrender the licence and two of the three operator’s licence discs issued to the Appellant. The letter stated that the third disc had been lost. The Appellant again challenged the right of the Traffic Commissioner to refuse to accept the surrender of the licence. (xi) The Public Inquiry took place before the Traffic Commissioner on 7 January 2015. The only persons present were the Traffic Commissioner and the Court Clerk. After the matter had been formally announced the Traffic Commissioner explained that he was normally based in Birmingham and that he was dealing with the matter because the Traffic Commissioner for the West of England had recused herself as a result of the allegations of bias contained in letters from NS in the Public Inquiry file. The Traffic Commissioner also stated that he was aware of the application to surrender the licence and was aware that the Appellant questioned his right to reject it. He added that he would deal with that point and other matters in a written decision. (xii) The Traffic Commissioner’s written decision is dated 13 January 2015. He began by explaining the system of registering local services brought in when the industry was deregulated. In particular he referred to the 56 day period of notice, which is the normal period of notice required for the registration or cancellation of a bus service. He pointed out that that requirement can be waived in cases where any of the criteria set out in Regulation 7(2) of the Public Service Vehicles (Registration of Local Services) Regulations 1986, (“the 1986 Regulations”) is shown to be met. He added that when considering a short notice application it was relevant to take into account considerations such as road safety, the needs of the travelling public, who might be left without a service, commercial advantage and the results of consultation with the local authority. (xiii) The Traffic Commissioner then pointed out that in the absence of anyone from or representing the Appellant no evidence of financial standing had been put before him. He went on to set out the other evidence, which we have summarised above. (xiv) Under the heading ‘Material Considerations and Findings of Fact’, the Traffic Commissioner pointed out that the decisions in relation to the applications made by Western Greyhound were made by a different Traffic Commissioner on evidence which he himself had not seen and which had not been disclosed to the Appellant as part of the evidence to be considered at the Public Inquiry. The Traffic Commissioner added that he was disappointed that NS, as an experienced transport manager did not appreciate that the application for short notice cancellation, based on commercial considerations, was bound to fail because commercial considerations do not come within the criteria for short notice in Regulation 7(2) of the 1986 Regulations. He went on to point out that every operator who registers a bus service runs a commercial risk that a rival will register another service on the whole or on part of the route, with the result that the financial viability of the original service is affected, because unless a short notice cancellation can be granted, within the provisions of Regulation 7(2) of the 1986 Regulations, the service must operate in accordance with the registered timetable for the 56 day notice period. (xv) The Traffic Commissioner concluded that, on its own admission, the Appellant did not run service 29 during the 56 day period required for notice of cancellation. He went on to indicate that it was clear from the tone and content of the correspondence that NS considered that the Appellant had a reasonable excuse for not running the service during that period. He indicated that this was something that he ought to take into account in determining the final outcome, including the level of any financial penalty under s. 155 of the 2000 Act. The Traffic Commissioner came to the conclusion that notwithstanding the belief that there were reasonable grounds for not operating service 29 there was, in fact, no basis under Regulation 7(2) of the 1986 Regulations for a short notice cancellation. (xvi) The Traffic Commissioner went on to consider whether it was appropriate to impose a penalty for the failure to run service 29. He concluded that since there was no ground for a short notice cancellation the Appellant had, in fact, no reasonable excuse for not running the service. He took into account that operators who disagree with or do not like a decision made by a Traffic Commissioner cannot be permitted to ignore such decisions with impunity because of the unfair impact that this would have on compliant operators. The Traffic Commissioner expressly stated that he was resisting the temptation to add to the penalty because of the ill-advised language used by the Appellant in the course of correspondence. Taking all these factors into account the Traffic Commissioner concluded that a penalty had to be imposed but that the appropriate figure lay at the lower end of the scale. He set the level of the penalty at £100 per disc, giving a total penalty of £300. (xvii) In the absence of any evidence of financial standing and taking into account that the business had ceased to operate the Traffic Commissioner concluded that it was both appropriate and proportionate to revoke the Appellant’s operator’s licence. He went on to consider the question of disqualification but concluded that it was neither necessary nor appropriate to do so. (xviii) On 15 January 2015 the Appellant emailed the OTC to say that the Appellant did not accept the Traffic Commissioner’s decision and that it would appeal. The email went on to criticise the timing of the call-up letter, the fact that the Christmas break came during the lead up to the Public Inquiry and the fact that there was no notification of the identity of the Traffic Commissioner who was to preside over the Public Inquiry. It repeated matters, which have been summarised above, and sought to compare the treatment of the Appellant with that of other operators in the area. (xix) On 4 February 2015 the Appellant filed a Notice of Appeal. Although they are extensive the grounds of appeal effectively only raise two points. The first is that the Appellant surrendered the licence before the date of the Public Inquiry. In effect the submission on this point is that the Traffic Commissioner was bound to accept the surrender of the licence and that he therefore had no power to revoke the licence or to impose a penalty. The second is that the actions of the Traffic Commissioner for the West of England and her office put the Appellant in a position where it had no alternative but to cease to operate service 29. The grounds of appeal conclude by making it clear that the Appellant is not seeking to have its operator’s licence restored but is, instead, seeking to have the decision changed to the licence being surrendered rather than revoked and to the penalty being annulled. (xx) Annexed to the grounds of appeal were three letters, dated 27 April 2014, 14 May 2014 and 22 May 2014. All three were from the Appellant to the CLO and they all concerned the application to register service 29. It would appear that none of these documents was before the Traffic Commissioner at the date of his decision. It follows that they can only be taken into account if there is a successful application to admit fresh evidence. (xxi) On 17 March 2015 NS emailed the Tribunal on behalf of the Appellant. He enclosed a further copy of the letter of 22 May together with email exchanges in which he asserted that the competing service registered on short notice by Western Greyhound ought not to have been added to an existing registration because less than 50% of the new route corresponded with the route which had originally been registered. Again this is material that was not before the Traffic Commissioner so it can only be taken into account after a successful application to admit fresh evidence. (xxii) On 23 March 2015 the Tribunal informed NS that it would be necessary for him to make an application to adduce fresh evidence at the hearing of the appeal. He was informed that the test to be applied when deciding an application for fresh evidence was considered by the Tribunal in appeal 2002/40 Thames Materials . It was suggested that the first and third of the four conditions set out in that case were most likely to be critical in this appeal, namely:
“(i) The fresh evidence must be admissible evidence and (iii) It must be evidence such that, if given, it would probably have had an important influence on the result of the case, though it does not have to be shown that it would have been decisive”
. NS was told that the documents would be added to the appeal bundle but that he must understand that the Tribunal could only have regard to them, in reaching a decision to allow the appeal, if the application to adduce fresh evidence was successful. (xxiii) On 7 April 2015 NS emailed the Tribunal. The full text of the email is quoted because it provides an indication of the type of language used by NS and his general approach:- “ It would appear to me that the decision made by the Principle (sic) Judge is more likely to be that we will not succeed. As such there is little point when the whole process is corrupt. It is therefore necessary for us to take other more public measures to resolve our position. You should be aware that by leaving these letters out of the original bundle the officer involved could be involved with perverting the course of justice and therefore as the Upper Tribunal is not interested in new evidence it is necessary to refer this for action to resolve this and more issues now surfacing following the entering into administration of Western Greyhound Limited in Cornwall. For us the appeal cannot take place as it is unlikely the appeal will be overturned without the omitted evidence being included. Therefore we regard the whole process as a complete waste of time and will no longer pursue this. Our emphasis now will be on a public campaign to discredit the system, which in light of the Western Greyhound failure is already underway” . (xxiv) On the same day the matter was referred to the Principal Judge. He treated the final paragraph as an application to withdraw the appeal. NS was informed that the Tribunal’s consent to the withdrawal of the appeal was refused on the ground that NS had misunderstood the position in that no decision had been taken in relation to the application to adduce fresh evidence, instead NS had simply been alerted to the considerations that the Tribunal was bound to take into account when deciding such an application. (xxv) On 16 April 2015 NS emailed the Tribunal asking about the procedure for making an application to adduce fresh evidence. (xxvi) On 21 April 2015 NS was informed that he had until 16.30 on 1st May to send written submissions to the Tribunal explaining (a) how the documents meet the conditions set out in Thames Materials and (b) any additional reasons, as to why the documents help to show that the appeal should be allowed and that the application to withdraw the service at short notice came within one of the cases set out in Regulation 7(2) of the Public Service Vehicles (Regulation of Local Bus Services) Regulations 1986. (xxvii) On 23 April 2015 NS emailed the Tribunal enclosing a document headed ‘Background’ in which he explained what he considered to be the significance of the other documents the subject of the application to admit fresh evidence. However he did not identify which of the cases set out in Regulation 7(2) was relied on to justify a short notice cancellation.[3]The appeal was listed for hearing at 10.30 am on 8 April 2015. It was reached shortly after 11.20 am by which time there was nobody present from the Appellant and nobody representing the Appellant. Given the email exchanges set out above in paragraphs 2(xxii)-(xxiv) the Tribunal concluded that the appropriate course was to hear and determine the appeal in the absence of the Appellant. We have considered all the papers now before us with the grounds of appeal in mind and, in addition, we have considered whether there are any other matters that might enable the appeal to succeed.[4]Before turning to the grounds of appeal it may be helpful to say more about withdrawing appeals. Before the jurisdiction of the Transport Tribunal was transferred to the Tribunal Service the Transport Tribunal was governed by the Transport Tribunal Rules 2000. Rule 28(1) of those Rules provided that:
“Any applicant or appellant may withdraw his case by the service on the Tribunal of written notice to that effect”
. Rule 28(2) provided for the Secretary of the Transport Tribunal to send a copy of the notice to any other party, and to the Traffic Commissioner and the appropriate national authority. In other words under those rules there was no requirement for the Tribunal to consent to an appeal being withdrawn.[5]Now that the jurisdiction of the Transport Tribunal has been transferred to the Tribunal Service, (with one small exception which is of no relevance to this appeal), the Transport Tribunal Rules 2000 no longer apply and the relevant Rules are the Tribunal Procedure (Upper Tribunal) Rules 2008. Under Rule 17(1) of those rules a party has the right to give notice of withdrawal of its case, or any part of it, either by written notice or orally at a hearing. However Rule 17(2) goes on to provide that:
“Notice of withdrawal will not take effect unless the Upper Tribunal consents to the withdrawal except in relation to an application for permission to appeal”
. We have already explained, in paragraph 2(xxiv) above), why we came to the conclusion that it was not appropriate to consent to this particular appeal being withdrawn.[6]The first ground of appeal raises the question of whether the Traffic Commissioner was bound to accept the surrender of the licence or whether he had a discretion to refuse to do so. The Appellant’s submission is that there is no discretion and that the Traffic Commissioner was therefore duty bound to accept the surrender and cancel the Public Inquiry.[7]We are satisfied that the Appellant is wrong on this point. The application to surrender the licence was made after the call-up letter was sent and at a time when the Traffic Commissioner was:
“considering taking action under s. 17(1) or (2) of the Public Passenger Vehicles Act 1981”
. It follows that while the Appellant had the right, under s. 15(3) of the 1981 Act to request the Traffic Commissioner to terminate the licence the Traffic Commissioner had the right, under s. 15(4) to refuse to do so. Given that there was justifiable concern that the Appellant no longer met the requirement to be of appropriate financial standing and given that revocation was mandatory once the Traffic Commissioner was satisfied that the Appellant did not meet that requirement it seems to us that the Traffic Commissioner was fully entitled to refuse to accept the surrender of the licence, or to adopt the language of the Act to refuse to terminate the licence. It follows that the first ground of appeal fails.[8]Since the Appellant did not provide any evidence of financial standing either before or at the Public Inquiry this was a case in which revocation was inevitable. We agree with the finding that revocation was both appropriate and proportionate. Accordingly the order revoking the licence must stand.[9]Before we consider the application to adduce fresh evidence we must consider the statutory provisions in relation to notice. The registration of local services is governed by s. 6 of the Transport Act 1985, (“the 1985 Act”). Under s. 6(7) of the 1985 Act an operator may apply to vary or cancel the registration of a local service. However s. 6(8) of the 1985 Act provides that the variation or cancellation:
“shall become effective- (a) on the expiry of the period beginning with the date on which the traffic commissioner accepts the application and ending with the date determined in accordance with regulations under this section; or (b) if later, on the day given to the traffic commissioner by the operator as the effective date for the variation or (as the case may be) cancellation ”
. The power to make regulations is then conferred by s. 6(9) of the 1985 Act. This power was exercised to make the 1986 Regulations.

(a) of the 1985 Act is:

“the last day of the period of 56 days commencing on the date on which the traffic commissioner accepts the application” , (see Regulation 5(2)(b) of the 1986 Regulations. However in any case to which paragraph 7(2) of the 1986 Regulations applies s. 6(8) of the 1985 Act: “shall have effect as if for the reference in paragraph (a) to the date on which the period mentioned in that paragraph is to expire there was substituted a reference to such date as the traffic commissioner may determine”
. The effect of these provisions is that (i) the normal period of notice before a variation or cancellation can come into effect is 56 days from the date on which the Traffic Commissioner accepted the application and (ii) the Traffic Commissioner has discretion, but only in a case coming within sub-paragraphs (a)-(i) of paragraph 7(2) of the 1986 Regulations, to reduce the period of notice to such date as he determines.[10]It follows that the question is whether the Traffic Commissioner was plainly wrong to conclude that the Appellant’s application did not meet any of the criteria for short notice set out in paragraph 7(2) of the 1986 Regulations. We note that at no stage has NS ever sought to identify the sub-paragraph relied upon by the Appellant as giving the Traffic Commissioner the power to cancel service 29 on short notice. Instead it seems to us that he has approached the point on the basis that the Traffic Commissioner had an unfettered discretion to permit a short notice cancellation. We are satisfied that Traffic Commissioners only have power to allow the variation or cancellation of a registered service on less than 56 days notice where the operator meets the requirements of one or more of the cases set out in Regulation 7(2). We have therefore considered all the sub-paragraphs currently in force, (sub-paragraph 7(2)(g) was revoked in 1989).[11]In our view it is unnecessary to give detailed consideration to the cases set out in Regulation 7(2)(a)-(f) or (i) because it is immediately apparent that none of those cases can assist the Appellant. Regulation 7(2)(h) enables a Traffic Commissioner to vary or cancel a registered service on short notice: “where an operator, due to circumstances which he could not reasonably have foreseen, failed to make an application in sufficient time for the period of notice applicable apart from this sub-paragraph to operate” .[12]It is unfortunate that NS never sought to bring the Appellant’s application for a short notice cancellation of service 29 within one of the cases set out in Regulation 7(2). Nevertheless it seems to us that we must consider whether that case can be put in a way that would have required the Traffic Commissioner to grant the application. In summary form the case for the Appellant would appear to be this:(i) on 30 April 2014 it submitted an application for a new service between St Austell and Bodmin, intending to start on 1 June 2014, (i.e. it was a short notice application),(ii) because the short notice application was refused the Appellant was unable to commence this service until 29 June 2014,(iii) Western Greyhound used the blanket letter of support issued by Cornwall County Council, to make an application to vary an existing registration to compete with the service which the Appellant had applied to run,(iv) Western Greyhound were permitted to vary their service on short notice so that they were able to operate their revised service from 1 June 2014,(v) The variation of Western Greyhound’s service ought not to have been allowed because it did not meet the relevant criteria,(vi) the new service, running 5 minutes ahead of that proposed by the Appellant, rendered the Appellant’s service uneconomic, (vi) as a result the Appellant was put into a position in which it had no alternative but to withdraw service 29 because of the financial consequences of continuing to run it.[13]The question we have to decide is whether all or any of the points summarised above bring the Appellant’s application for a short notice cancellation within Regulation 7(2)(h). Or, to use the words of the Regulation, do all or any of these points amount to circumstances, which the Appellant “could not reasonably have foreseen” ?[14]One of the main purposes of the deregulation of local bus services was to encourage competition. In other words whenever an operator seeks to register a new local service, or to alter an existing service, it is reasonably foreseeable to that operator that a competitor may apply to add or to vary a service, which will then compete with the service that the original operator is seeking to run. In addition, since everyone is taken to know the law, it is reasonably foreseeable that an application to add or vary a service, so that it competes with what the original operator is intending to do, may be made on short notice, provided that it can be brought within one of the cases set out in Regulation 7(2) of the 1986 Regulations. The application by Western Greyhound to vary an existing service on short notice was granted by a Traffic Commissioner. That means that the decision must be presumed, as a matter of law, to have been made rightly and regularly. The presumption is rebuttable, but only if there is clear evidence to show that the original decision was wrong. Mere assertion or opinion is not sufficient to show that a judicial decision is wrong. Since the Appellant did not appear either at the Public Inquiry or at the hearing of the appeal the only material put forward to challenge the decision to grant the short notice variation for which Western Greyhound applied takes the form of the untested assertions and opinions set out in the letters to which NS has referred us.[15]We are satisfied that even taking into account the new material covered by the application to adduce fresh evidence the Appellant cannot show that the Traffic Commissioner was required to treat the immediate cancellation of service 29 as a valid short notice application coming within the terms of Regulation 7(2)(h). We have reached that conclusion for several reasons. First, it was reasonably foreseeable, when the Appellant applied to operate a new local service that another operator would seek to operate a service in competition. Second, it was reasonably foreseeable that an application to run a competitive service would be made on short notice, if that operator could satisfy one or more to the requirements of Regulation 7(2). Third, it was reasonably foreseeable that the operation of a competitive service might make the service proposed by the Appellant uneconomic. Fourth, we are not persuaded that there is any sufficiently compelling material to call into question the judicial decision to allow Western Greyhound to vary their service at short notice, it must, therefore be presumed to be correct. It follows, in our judgment, that the Appellant has failed to show how the Appellant’s circumstances come within any of the cases set out in Regulation 7(2) of the 1986 Regulations. That means, in turn, that the Traffic Commissioner had no power to reduce the 56 day period of notice before the cancellation of service 29 took effect. In our view the Traffic Commissioner was right to conclude that it was appropriate to impose a penalty for the failure to run service 29 during the 56 day period of notice. Furthermore we consider that the Traffic Commissioner’s approach to the calculation of the penalty in the present case cannot be faulted. It follows that the second ground of appeal also fails.[16]We return briefly to the application to adduce fresh evidence. It will be apparent from what we have already said that in our view the documents that NS seeks to adduce do not fulfill the third of the conditions set out in the appeal of Thames Materials . We say that because that condition requires that the evidence must be such that, if given, it would probably have had an important influence on the result of the case, though it does not have to be shown that it would have been decisive. For the reasons we have already given we are satisfied that the new material does not begin to meet this test. It follows that the application to adduce fresh evidence is rejected.[17]Since both grounds of appeal have failed the appeal is dismissed with immediate effect. The revocation of the licence stands and the penalty remains payable. His Hon. Michael Brodrick , Judge of the Upper Tribunal, Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal. 8 June 2015

Cited in 1 later judgment