Anthony Joseph Baxter trading as Baxter's Transport: [2016] UKUT 426 (AAC) [2016] UKUT 0426 (AAC)

‘If you do not do this correctly you may face the extra cost and the delay of having to re-advertise, or your application may be refused.’ (iv) Accompanying the variation application form which had been placed on 25 February 2016 in a newspaper in County Tyrone. The advertisement stated: ‘Baxters Transport I want to park my lorry and trailer at [an address in County Tyrone].’ (v) On 29 March 2016 a Caseworker in the Central Licencing Office wrote to the Appellant acknowledging receipt of the variation application but also indicating that additional information was required by the Department before the application could be considered. The correspondence stated: ‘… the advert submitted in support of your application is unacceptable. The wording was incorrect and thus misleading to local residents because the proforma that was attached to the application has not been completed. You must ensure the publication of a fresh advertisement by no later than 19th April 2016, using the enclosed proforma…. It is imperative that the following is included in your new advertisement: - The heading Goods Vehicle Operator’s licence - The operator’s full name (the entity that holds the licence) - Your address of correspondence (to enable potential representors to submit their representations to you) - Indication that you are changing an existing licence 4 - The final paragraph at the end of the enclosed proforma …’ (vi) The Appellant was also requested to complete the answers to certain questions on the variation application form. (vii) There was no reply to the correspondence dated 29 March 2016. On 25 April 2016 the Caseworker wrote to the Appellant again indicating that the additional documentation which had been requested in the correspondence of 29 March 2016 remained outstanding. The Appellant was informed: ‘… you must now respond in full no later than 9 May 2016. If on that date the application remains incomplete, it will be refused. Should this happen, you will have to re-apply for a licence and meet again the application fee plus the cost of placing a fresh advertisement.’ ‘ (viii) On 28 April 2016 items of correspondence were received from the Appellant in the Central Licencing Office. These included completed pages from the variation application form including a signed declaration. There was also a copy of an advertisement which had been placed in a newspaper in County Tyrone on21 April 2016. The advertisement was headed ‘Goods Vehicle Operator’s Licence.’

‘Baxter Transport, trading as Baxter Transport of [an address in County Tyrone] is applying for a licence to use [an address in County Tyrone] as an operating centre for 1 goods vehicle and 1 trailer. Owners or occupiers of land [including buildings] near the operating centre(s) who believe that their use or enjoyment of that land would be affected, should make representations to the DOE … stating their reasons, within 21 days of this notice. Representors must at the same time send a copy of their representations to the applicant at the address given at the top of this notice …’ (ix) The Appellant also forwarded a handwritten letter in the following terms: ‘I have closed my operating centre at {an address in County Fermanagh] and have moved to [an address in County Tyrone]. I enclosed [sic] paper cutting for my operator’s licence.’

‘OFFICIAL: Not for disclosure to any third parties without the specific consent of the Head or Deputy Head of the Transport Regulation Unit’

‘I agree with the recommendation to refuse the application under the provisions of Section 10(1) of the 2010 Act in view of the applicant’s failure to meet the advertising requirements. In addition to the issues with the advert noted above, Mr Baxter has also failed to state his name as required under Schedule 2(1) of the 2012 Regulations, which specifies that an advert must state the name of the applicant. This requirement should also be made clear to the operator should he choose to re-apply. I also agree that Mr Baxter be reminded that he has no authority to use [an address in County Tyrone] as an operating centre and that unauthorised use may lead to regulatory action being taken against the licence.’

‘I refer to you application for an operator’s licence dated 9 March 2016 and my recent letter warning of the consequences should you fail to provide proof that you have placed a valid newspaper advertisement as required under Section 10(20 of the above Act. 6 Your advertisement failed to satisfy the prescribed statutory requirements. I must now advise you that as you have failed to comply with the prescribed requirements, your application has been refused under Section 10(1) of the Act. … You are advised that you cannot lawfully operate vehicles for which an operator’s licence is required until you either submit a fresh licence application which is granted by the Department, or you lodge an appeal to the Upper tribunal which succeeds in overturning the decision to refuse this application. You are also reminded pursuant to Section 6(1) of the above Act, you are not authorised to lawfully operate from … If you contravene the aforementioned legislation, you are guilty of an offence and regulatory action will be taken against you. If you wish to operate from the aforementioned operating centre you must apply for authority by submitting a publishable variation application along with an advert and a non refundable application fee of £254. You must ensure your advertisement fully meets the prescribed requirements and ensure it is correctly worded and published within the 21 day statutory period.’

‘I was turned down for sending in my advert two days too late. The paper sent the wrong one the first time so I am sending a copy of the one that was 2 days late. I always had an ‘O’ licence and never any bother with anyone. The reason I moved to a new parking ‘O’ centre was my old one had too many lorries. I phoned Leeds and was told the reason was two days too late. I hope you find this o.k. I have only one truck and trl. I only work it to do odd jobs. As I am on the border with the ROI I need the licence. I also paid my fee and this will all happen when I moved my centre.’

‘There is a right of appeal to the Upper Tribunal against decisions by the Head of the TRU in the circumstances set out in s. 35 of the 2010 Act. Leave to appeal is not required. At the hearing of an appeal the Tribunal is entitled to hear and determine matters of both fact and law. However it is important to remember that the appeal is not the equivalent of a Crown Court hearing an appeal against conviction from a Magistrates Court, where the case, effectively, begins all over again. Instead an appeal hearing will take the form of a review of the material placed before the Head of the TRU, together with a transcript of any public inquiry, which has taken place. For a detailed explanation of the role of the Tribunal when hearing this type of appeal see paragraphs 34-40 of the decision of the Court of Appeal (Civil Division) in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ. 695. Two other points emerge from these paragraphs. First, the Appellant assumes the burden of showing that the decision under appeal is wrong. Second, in order to succeed the Appellant must show that: “the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view”. The Tribunal sometimes uses the expression “plainly wrong” as a shorthand description of this test.’

‘It is apparent that many of the provisions of the 2010 Act and the Regulations made under that Act are in identical terms to provisions found in the Goods Vehicles (Licensing of Operators) Act 1995, (“the 1995 Act”), and in the Regulations made under that Act. The 1995 Act and the Regulations made under it, govern the operation of goods vehicles in Great Britain. The provisional conclusion which we draw, (because the point has not been argued), is that this was a deliberate choice on the part of the Northern Ireland Assembly to ensure that there is a common standard for the operation of goods vehicles throughout the United Kingdom. It follows that decisions on the meaning of a section in the 1995 Act or a paragraph in the Regulations, made under that Act, are highly relevant to the interpretation of an identical provision in the Northern Ireland legislation and vice versa.’

‘The Respondent refused the application for a variation of the existing licence on the grounds that the Applicant failed to satisfy the prescribed statutory requirements under Section 10(1) of the Goods Vehicle (Licensing of Operators) Act Northern Ireland 2010. 8 The Department in preparing this matter for hearing has discovered that the decision letter cites the above legislation. This legislation relates to applications for a licence and not for applications to vary existing licences. In fact, the application should have been properly refused under Section 17 (1) of the Goods Vehicle (Licensing of Operators) Act Northern Ireland 2010. Both parts of the legislation are similar in that there is a period of 21 days before and up to 21 days after the application is made, for an advert to be placed. In respect of both pieces of legislation, the advert was placed 2 days outside the statutory timeframe and there is no discretion to extend this. The Respondent however concedes that the decision appears to have been made and subsequently issued under the wrong legislation. While the Department may consider a review of this decision under Section 34 of the 2010 Act, the outcome would remain the same.’ … The Respondent accepts that it erred in taking its decision under Section 10. This error was noticed during the preparation of this matter. However in so applying the correct legislation at Section 17 (1) and Section 17 (3) the Respondent would state that they must refuse this application under this legislation for the exact same reasons as outlined below. The Appellant was asked to re-advertise to meet the statutory criteria as laid out in Section 17 (3) of the 2010 Act. He was provided with a statutory timeframe for so doing. The Appellant failed to comply with this requirement. As Section 17 (3) has not been made out there is no discretion to consider the granting of such a variation and the application must be refused, pursuant to 17(1) of the 2010 Act. In failing to advertise before the 19th April 2016 the Appellant failed to meet the criteria which were clearly set out to him in a letter dated the 29th March 2016. In failing to do so the Respondent must refuse to grant the variation application. The Respondent accepts the reason for the refusal was communicated to the Appellant under the incorrect Section of the legislation and in so doing has erred. However, for the reasons set out above the Respondent would contend that the variation application must still be refused under Section 17(1) of the 2010 Act.’

‘The appellant relies on the following grounds of appeal. The Respondent wishes to reply to each as follows: 9 ‘I was turned down for sending in my advert two days too late.’/ ‘My advertisement in the newspaper was sent in to Leeds but it was two days late when it arrived so they refused.’

‘We have already commented on the absence of documents and information in the appeal bundle. We believe that it may be helpful if we say rather more on this topic. One of the main functions of the Tribunal is to review the way in which the Traffic Commissioner reached the decision in question. We consider that it is essential, if the Tribunal’s function is to be discharged properly and fairly and if justice is to be seen to be done, that the Tribunal should have before it all the material which was before the Traffic Commissioner at the time that the decision in question was taken. Finally we wish to add the following general points:- (i) It is normally desirable that every appeal bundle should include a copy of the application for the current operator’s licence, any earlier application, if relevant and any application for a variation if relevant. These documents provide a quick and easy way to obtain basic but important information about the operator and the operating centre. No application was included in the present appeal bundle. (ii) Every appeal bundle should contain a complete set of correspondence between the Traffic Area Office and the Appellant relating to the matters giving rise to the appeal. In the present case as we have pointed out the enclosure sent with the letter of 7th January 2000 was omitted as was the copy of that letter sent on 7th February 2000. (iii) The correspondence in the present case refers to a telephone call on 3rd March 2000. The indication from Mr. Duckworth was that Mr. Donald asserted that there was more than one call. Where possible, (and we accept that it may not always be possible), a note should be made of telephone calls with operators. Without such a note it is likely to be very difficult to resolve any dispute as to the content of the call or whether it did in fact take place. Where there is such a note of a call, 12 relevant to the matters giving rise to the decision from which there is an appeal, it should be included in the appeal bundle. (iv) Every appeal bundle should contain a record of the decision from which there is an appeal. In the great majority of cases this presents no problem because there will either be a transcript of the Traffic Commissioner’s oral decision or a copy of a reserved decision. This case falls into a different category because it was a decision made in chambers. The appeal bundle contains no document of any description on which the decision is recorded. In our view this is simply not acceptable. Both the Tribunal and the operator are entitled to know (a) who made the decision in question, (b) on what ground the decision was made and (c) the reason for concluding that the ground was made out. Experience of chambers decisions taken in other Traffic Areas suggests that this information can be adequately provided in a very few sentences. In our view nothing less will enable the Tribunal to be satisfied that the Traffic Commissioner has correctly identified the issue(s) and has correctly applied the appropriate test.’

‘The Traffic Commissioner clearly felt that the Minute dated 16 January 2008, (see paragraph 2(iii) above), ought not to have been disclosed to Mr. Cunningham. In the absence of any other document from which the reason (or lack of reason) for the refusal of the application to cancel the services at short notice can be determined we disagree with that view. In our view the Appellants were entitled to know the basis on which the application was refused and they were entitled to know whether or not the correct test had been applied. In the absence of a reasoned decision or a fully reasoned letter giving the grounds for refusal, (neither of which was provided), it seems to us that disclosure of the underlying documentation was essential. How else could the correctness of the decision be challenged? How else could the Tribunal give reasons for saying either that the decision was wrong or that it was correct?’