Surrey County Council v Williams (t/a Garden Materials Landscaping)

1. LORD JUSTICE RIX: This is an appeal from a decision of the Transport Tribunal dated 19 December 2001, sitting itself on appeal from a decision of the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area, Mr C S Heaps, made on 14 September 2001. An appeal from the Traffic Commissioner to the Transport Tribunal lies generally, and as a matter of right. The further appeal from the tribunal to this court lies only on a question of law: see section 37 of the Goods and Vehicles (Licensing of Operators) Act 1995 ("the Act") as to the former, and paragraph 40 of schedule 4 to the Transport Act 1985 as to the latter. On appeal to the tribunal, it has power to "make such order as they think fit": para 9 of schedule 4 to the 1985 Act. It has power to determine all matters, whether of law or fact, and indeed in that respect to compel the attendance of witnesses and inspect property for itself.

2. The commissioner decided to approve the application of a goods vehicle operator, Mr Paul Williams, trading as Garden Materials Landscaping, for a restricted operator's licence for two vehicles, one a 7.5-tonne tipper, 14 feet long including cab, and the other a 17-tonne tipper, 21 feet long, specifying as the operating centre Perry Farm, West Park Road, New Chapel, Lingfield, Surrey. A restricted operator's licence is the licence for goods vehicles for the licensee's or operator's own use, as distinct from use of his goods vehicles for hire. Another firm, Leonard's Turf Farms, already had an operator's licence for that centre in relation to three other vehicles, which had been operating from that centre without incident and without being subject to any conditions or undertakings since, as this court has been informed today, 1988. Leonard's Turf Farms had allowed Mr Williams to park his two commercial vehicles there, subject to his application for an Operator's licence being granted, since at least February 2001. Perry Farm had an access on to a B road, the B2028, there known as West Park Road. There was evidence before the commissioner that West Park Road was unlit, heavily trafficked, subject to a 60 mile per hour speed restriction and without footpaths; also that there was a bridleway in the vicinity of the site. The access to Perry Farm was situated on the inside of a slight bend in the road. A speed survey recorded the 85th percentile speed of traffic along West Park Road at about 50 miles per hour; or, making a standard 2.5 mile per hour adjustment for wet weather use, about 47.5 miles per hour in wet weather. The relevance of those figures will become apparent in due course.

3. Surrey County Council, the appellant on this appeal ("the council") had objected to Mr Williams' application, as it was entitled to do as the relevant local authority pursuant to section 12(2)(c) of the Act. It did so, on grounds identified in a letter to the clerk to the commissioner dated 25 April 2001, on the basis that access to the site was substandard in not having an adequate bell mouth, and that intensification of the use of the site as an operating centre would create an unacceptable additional safety hazard for other road users. In response Mr Williams made it clear that he only intended to use the access for these two vehicles for a single exit and return with each vehicle each day. The Surrey constabulary would also have been permitted to lodge a statutory objection but did not.

4. The commissioner had to decide, pursuant to section 13(5)(d) of the Act, whether the operating centre specified was "suitable for use as such". Thus he had to be satisfied in the terms of that subsection that:

"(d) at least one place in the traffic commissioner's area is specified in the licence as an operating centre of the licence-holder, and each place so specified is available and suitable for use as such an operating centre (disregarding any respect in which it may be unsuitable on environmental grounds)."

Moreover, in considering that question, pursuant to section 13(9) of the Act, the commissioner:

"may take into account any conditions that could be attached to the licence under section 21 and may assume that any conditions so attached will not be contravened".

Section 21(1) provides:

"On issuing an operator's licence, or on varying such a licence under section 17, a traffic commissioner may attach to the licence such conditions as he thinks fit for preventing vehicles that are authorised for use under it from causing danger to the public --

(a) at any point where vehicles first join a public road on their way from an operating centre of the licence-holder (or last leave a public road on their way to such an operating centre); and

(b) on any road (other than a public road) along which vehicles are driven between such a point and the operating centre."

Under section 21(3), the commissioner shall not attach any such conditions without first giving to the applicant "an opportunity to make representations to the commissioner with respect to the effect on his business of the proposed condition". Under section 21(4):

"The traffic commissioner shall give special consideration to any representations made under subsection (3) in determining whether to attach the proposed condition or make the proposed variation."

5. The commissioner did in fact apply certain conditions on and take certain undertakings from Mr Williams, but Mr Williams does not complain about that. Indeed, he did not complain about the commissioner's or the tribunal's decisions at all and is not represented on this appeal. The burden of this appeal is that of the council, who say that the commissioner should never have approved the application at all, and that his decision to do so was plainly wrong or perverse. It says the same about the tribunal's upholding of the commissioner's decision. It does so on the basis of its concern for road traffic safety. In the absence of Mr Williams, the opposition on this appeal in theory came from an intervening respondent, namely the Secretary of State for Transport, whom Dyson LJ permitted to intervene after permission for this appeal had been given. In the event, although assisted by the helpful skeleton of Mr Martin Chamberlain for the Secretary of State, this court has not felt it necessary to call on him at this hearing.

6. The conditions and undertakings which the commissioner imposed and took, and which the tribunal upheld (one further undertaking not upheld by the tribunal is not relevant to this appeal) were as follows:

" Conditions

1. Vehicles to exit/return to the operating centre in forward gear.

2. Vehicles to leave by turning left and return by turning right.

3. Vehicles not to exceed 17.5 tonnes and 2 axles.

Undertakings

2. Not more than one movement in/out by each vehicle, each day."

7. The further facts I can take directly from the tribunal's reasons for its decision:

"(ii) A public inquiry was held on 14 September 2001. On that day, the Traffic Commissioner visited the operating centre.

(iii) At the public inquiry, the Appellant was represented by Mrs Knowles, the Appellant's Transportation Planning Officer and Mrs Kennell, the Appellant's Transportation Development Control Engineer gave evidence. The Applicant appeared in person.

(iv) The evidence that Mrs Kennell gave on behalf of the Appellant as set out in the written statement of reasons was as follows:

'10. The access is situated on a slight bend and does not have a proper bellmouth. Sight lines measured from 4.5 metres from the road edge were measured at 12.3 metres in the leading traffic direction and 53.7 metres in the trailing traffic direction, a shortfall of 147.7 metres and 106.3 metres of the distances recommended (for new entrances) in the Companion Guide to Design Bulletin 32 (8% and 34% of the recommended distances).

11. Measured from the distances of 2 metres from the road edge, the sight lines were 73.4 metres in the leading traffic direction and 63.4 metres in the trailing direction (46% and 40% of the recommended distances).

12. Computer generated print outs were produced to show how vehicles entering and leaving the operating centre would be likely to encroach on the opposite carriageway or block much of the access.

13. SCC produced evidence of seven accidents in the vicinity of the operating centre, but none had been at the access to the operating centre or associated therewith.

14. Pedestrians and horse riders may be expected to pass the access to the operating centre and there was no footpath on the B2028 at this point.

15. The gates to the operating centre were set back 12.7 metres from the road edge.'

In response to questioning by the Traffic Commissioner, Mrs Kennell accepted that the computer generated plans wrongly showed the width of the entrance to the operating centre and in relation to possible conditions requiring the operator's vehicles to enter or leave the operating centre in a specific direction, Mrs Kennell indicated, whilst still opposing the Application, that she would prefer vehicles to turn left on leaving the operating centre and return from the same direction by a right turn into the operating centre.

(v) The evidence given by the Applicant is summarized in the Traffic Commissioner's written statement of reasons as follows:

'16. The Applicant stated that he wished to operate two vehicles: 1 x 7.5 tonnes tipper and 1 x 17 tonnes tipper. The vehicles were 14' and 21' overall (including cab).

17. He had often visited the operating centre with his vehicles and had encountered no problems.

18. The barn near the access had been sold (subject to contract) and -- as mentioned by SCC -- had the benefit of planning consent for conversion into three light industrial units subject to improvements being carried out to the access. These works had not yet commenced, but clearance had already begun.

19. The Applicant wished to use the operating centre solely for the purpose of overnight parking and the vehicles would not visit the operating centre during the day.

20. If a condition were to be proposed requiring him to enter/leave the operating centre turning left or right, he would have no objection '.

(vi) The Traffic Commissioner gave an oral decision:

'I heard all the evidence and I have been there and I think this is one of those cases where it is very important to have been there ....

What I am minded to do, and this is on the basis that if and when the building works are finished, as I understand it the Council will have no visibility problems, I am minded to grant the licence but subject to a number of conditions and undertakings. The first undertaking which goes to the whole core of the thing is that there will only be one movement out and one movement in each day .... and that of itself is intended to reduce the dangers because there is only one movement.

Secondly, and I know it is a balancing exercise, the County Council prefer that the vehicles exit to the left and will come in turning right ....

Thirdly, .... the vehicles to come and go using forward gear ....

.... There is one more condition that the vehicles well not exceed seventeen and a half tonnes on two axles, so we are limiting the size of the vehicles, the number of manoeuvres and the way in which they go.

It is not a perfect site or the County would not have made these submissions. I think Mrs Kennell has accepted that from two and a half metres the sight lines are much better than many we have seen, they are certainly not perfect. At four metres they are awful to the right, but at two and a half metres they are not bad. I believe subject to those conditions and undertakings I take a risk I suppose every time I grant a licence to anybody I believe we have balanced the fears of the County Council with your reasonable requirements'.

In response to the Traffic Commissioner's decision, Mrs Knowles stated:

'We are quite content with that because presumably this access is going to be improved fairly shortly';

(vii) On 1 October 2001, Mrs Knowles wrote to the Traffic Area acknowledging the letter confirming the Traffic Commissioner's decision and requesting a written statement of reasons as required under Regulation 22(1)(b) of the Goods Vehicles (Licensing of Operators) Regulations 1995 but prior to receipt of that written statement, the Appellant lodged grounds of appeal with this Tribunal and served a copy upon the Traffic Area on 12 October 2001.

(viii) The Traffic Commissioner provided his written statement of reasons on 29 October 2001, after the grounds of appeal had been served. The statement provided further detail of the reasons for his determination:

'24. The sight line methodology contained in the Companion Guide to Design Bulletin 32 relates .... to the construction of new accesses onto public highways. In any event, an existing access involving such limited use as is here proposed should not necessarily be expected to comply with the criteria for new access ....

25. SCC has acknowledged on many occasion that the sight line criteria are not met by very many -- possibly even the majority -- of existing junctions even between public highways (including trunk roads). At 2 metres from the road edge I found that visibility was not "woefully inadequate" as alleged by SCC'.

26. In this case, the evidential value of the computer generated print outs was placed in doubt by the admitted errors.

27. Having seen the operating centre myself and considered the evidence, I was not convinced that the sight line were so bad .... as to make the operating centre unsuitable, particularly in the absence of any accidents and the very limited proposed use of the operating centre by the Applicant.

28. Moreover, I concluded that it would be possible to prevent danger to the public by imposing conditions .... and to seek undertakings upon which I could rely ....

30. In reaching my conclusions, I took no account of the possibility of improvements to the access which could be carried out if the planning permission for the adjacent barn were implemented.'"

8. Today, Mr Dermot Main-Thompson on behalf of the council, in developing his grounds of appeal has clarified them for the assistance of this court so as to make it clear that he is really taking only a single ground, albeit it has a number of strands, and that is that the Transport Commissioner, and the Transport Tribunal in upholding his decision, has simply come to a perverse decision, one that is plainly wrong; one that no reasonable commissioner or tribunal could come to. The three strands of this single ground relate to aspects of visibility, accidents and encroachment. Of the three, Mr Main-Thompson has also made it clear that his central point relates to visibility, but he fairly submits that the three points are cumulative. Nevertheless, he accepts that if he fails on his central point, that of visibility, the other two strands have little to assist that cohesion which would add up to cumulative strength.

9. The visibility point, then, is this. Under design guidelines for new developments, known as Design Bulletin 32, Residential roads and footpaths, a methodology exists which enables the calculation of appropriate lengths of sight lines from the viewpoint of a driver placed a given number of metres down the minor or access road and away from the point of entry on to the so-called major road which it is joining; here West Park Road, the B2028. The distance down the access road is called the "x" distance and the sight line length is the "y" distance. The y distance is calculated by reference to the 85th percentile wet weather speed of vehicles using the so-called major road, if that percentile is known, as in this case it is.

10. Thus at a road speed in West Park Road of 85 kilometres per hour (the equivalent of 53 miles per hour) a y distance, or sight line, of 160 metres is the methodology guideline. This was the y distance taken as a working guideline in this case by the commissioner and then by the tribunal. In fact, the 160-metre figure overstates the real guideline under the methodology, because the 85th percentile wet weather speed on West Park Road was not 53 miles per hour but 47.5 miles per hour, or thereabouts. 47.5 miles per hour is some two thirds along from 53 miles per hour towards the next y distance guideline slot which is at 70 kilometres per hour, or 44 miles per hour, and that is a distance of 120 metres. Be that as it may, the commissioner and the tribunal were content to work off a guideline indication of 160 metres.

11. What were the sight lines in the case of the access to Perry Farm? At an x distance down the access road of 4.5 metres, the y distance was not the recommended 160 metres but only 12.3 metres to the left and 53.7 metres to the right; or respectively 8 and 34 per cent of the guideline figure. At an x distance of 2 metres, it was 73.4 metres to the left and 63.4 metres to the right, representing 46 per cent and 40 per cent of the guideline distance.

12. What is the significance of the 4.5 metres and 2 metres x measurements? The design bulletin 32 explains. 4.5 metres is the x dimension to be taken "for less busy minor roads and busy private access points". The guidelines give two further x distances:

"2.4m: The minimum necessary for junctions within development to enable a driver who has stopped at a junction to see down the major road without encroaching onto it.

2.0m: For single dwellings or small groups of up to half a dozen dwellings or thereabouts.

Only in exceptional circumstances should a distance less than 2.0m be considered."

Design bulletin 32 also says this:

"The guidance given here needs to be assessed in the circumstances of each case. Sightlines should never be reduced to a level where danger is likely to be caused."

13. It is reasonably clear that the commissioner and the tribunal respectively thought that it was appropriate to use an x distance of 2 metres. Thus at the time of his oral decision on 14 September 2001, the commissioner said:

"At four metres they are awful to the right, but at two and a half metres they are not bad."

In his written reasons it is plain that he was prepared to work off the minimum of 2 metres. I repeat para 25 of his reasons:

"SCC has acknowledged on many occasion that the sight line criteria are not met by very many -- possibly even the majority -- of existing junctions even between public highways (including trunk roads). At 2 metres from the road edge I found that visibility was not 'woefully inadequate' as alleged by SCC."

This was said by an experienced transport commissioner who must be taken as speaking with authority on such a matter, including his knowledge of sight line criteria at junctions generally. The commissioner also said this, at paragraphs 24 and 27 of his written reasons:

"24. The sight line methodology contained in the Companion Guide to Design Bulletin 32 relates, as is evidenced by the use of the word 'Design', to the construction of new accesses onto public highways. In any event, an existing access involving such limited use as is here proposed should not necessarily be expected to comply with the criteria for a new access as contemplated by the Companion Guide to Design.

.... .... ....

27. Having seen the operating centre myself and considered the evidence, I was not convinced that the sight lines were so bad, as alleged by Surrey County Council, as to make the operating centre unsuitable, particularly in the absence of any evidence of accidents and the very limited proposed use of the operating centre by the Applicant."

And the commissioner underlined the word "very" in that passage.

14. The Transport Tribunal agreed with the commissioner's analysis. It said at para 5 of its reasons:

"We reject Mr Main-Thompson's arguments. The sight line methodology contained in the Companion Guide to Design relates to the construction of new junctions; they do not relate to existing junctions and accordingly the Traffic Commissioner was not bound by those recommendations, although he rightly considered them. He visited the site and undertook a careful analysis of the sight lines whilst taking into account the nature of the operator's application and his intended use of the site."

15. In my judgment, Mr Main-Thompson's submission that the commissioner and the tribunal were both perverse in their attitude to this sight line methodology is not capable of success in this court. This court cannot properly say that an experienced transport commissioner and an expert transport tribunal have been perverse in the way in which they dealt with these guidelines, especially when Mr Main-Thompson himself accepts, as he does in his grounds of appeal, that:

"(i) The Traffic Commissioner has a discretion and is not bound to apply government guidance for new development to an established access;

(ii) The fact that a Traffic Commissioner has visited the location before reaching a decision is often a matter to which much weight will attach;

(iii) The vehicle movements proposed were very limited."

It may be noted that the decision whether the operating centre was "suitable for use as such" was ultimately a matter for the commissioner's, and on appeal for the tribunal's, discretion, and that in exercising that discretion they were not required by the Act to have particular regard or give special consideration to the Design Bulletin 32 guidelines: cf the terms of s 21(4) cited above.

16. Mr Main-Thompson's second strand relates to accidents on West Park Road. The evidence showed that there had been seven personal injury accidents within the last five years. Statistical methodology also established that for every personal injury accident there are 7.5 non-personal injury accidents. That on my calculation would give a total number of accidents for an area on West Park Road within 500 metres of the access point of almost 62 within the last five years.

17. As to these accidents, the transport commissioner said, at para 13 of his written reasons:

"SCC produced evidence of seven accidents in the vicinity of the operating centre, but none had been at the access to the operating centre or associated therewith."

The Transport Tribunal, for their part, on the same point said this at para 6 of their reasons:

"The second limb of Mr Main-Thompson's argument was that the Traffic Commissioner ignored the 'unchallenged' evidence of traffic speeds and in doing so, failed to take into account the extent of the danger caused by using the site as an operating centre as evidenced by the seven accidents relied upon by the appellant. He submitted that such danger could not be remedied by conditions. We disagree. The speed of vehicles using West Park Road was discussed by Mrs Knowles [the council's representative below], Mrs Kennell [the council's own internal expert] and the Traffic Commissioner during the course of the public inquiry and the evidence of the operator was that having visited the site 'many a time', he had not encountered any difficulties with access despite the speed limit of 60 miles per hour. The Traffic Commissioner accepted the operator's evidence on this point and we repeat, having visited the site, the Traffic Commissioner was in the best position to make an assessment of the suitability of the site as an operating centre. As to the accidents, the Traffic Commissioner rightly concluded that they were not at all associated with the access to the site and it was within his discretion to place little or no weight upon them."

I would respectfully agree with all of that and can find no error of law in either the Commissioner's or the Tribunal's approach in respect of this second strand.

18. Mr Main-Thompson's third strand relates to the subject-matter of encroachment; that is to say, encroachment of the applicant's goods vehicles beyond the mid-way point of West Park Road as they exit from the access road. There was evidence, in the form of a photograph of mud trackings on the road, to indicate that lorries turning out of Perry Farm access road did encroach a little way beyond the mid-point of the road. The matter was studied with the aid of computer-generated printouts presented by the council to illustrate the swept path of lorries turning in and out of the access road. As to this material, the commissioner said at paras 21-22 of his written reasons:

"21. I questioned the SCC as to the accuracy of the four computer generated plans which had been produced and it was accepted that, in two cases, the plans wrongly showed the width of the access.

22. I asked if the Traffic Commissioner were minded to grant the Application with a condition requiring the Applicant's vehicles to enter or leave in a specific direction, whether the SCC had any preference. SCC -- whilst still opposing the application -- indicated that it would prefer vehicles to turn left on leaving the operating centre and return from the same direction by a right turn into the operating centre."

That was in due course one of the conditions imposed by the commissioner. The relevance of the council's preference -- I accept while still opposing the application -- was that on the council's own evidence, so far as the subject-matter of encroachment taken by itself was concerned, a right turn out and a left turn in did not present the same difficulty. Nevertheless, if there was going to be a favourable response to the application, the council still preferred a left turn out and a right turn in. It was evidence relating to the left turn out which has been brought to this court's attention again on this appeal. I will revert to that in a moment. On this subject, the tribunal said as follows at para 7 of their reasons:

"The third limb of Mr Main-Thompson's argument was that the Traffic Commissioner was wrong to doubt the evidential value of the computer generated print outs which demonstrated the swept paths of vehicles turning right and left out of the site. We disagree. Both the Traffic Commissioner and Mrs Knowles expressed confusion about what the computer print outs showed and Mrs Kennell accepted that it had been difficult for her to generate the print outs accurately because it was not clear where the access width was from the features on the plan that she had used; she further accepted that as a result, the swept paths did not show where a vehicle would end up if it emerged from the access on the left hand side. In the result, we reject Mr Main-Thompson's submission that no reasonable Tribunal could have found that the site was suitable for an operating centre."

19. Mr Main-Thompson sought again on this appeal to demonstrate not so much from the computer-generated images, which in themselves show nothing, but from the transcript of the evidence, that it was accepted that the only possible turn left out of the access road that would not encroach beyond the centre of West Park Road took the vehicle through a wall and telegraph pole on the left corner of the access. I do not accept that that evidence was proved. The actual computer print-out proves nothing, only showing a satisfactory turn to the left without encroachment, plotted on an access marked with what is accepted to be an inaccurate width. There was no evidence in any event that the vehicle could not start its turn without either encroachment over the centre of the major road or any encroachment on the wall and telegraph pole if it started from further to the right of the access. Furthermore, there was this apparently plain evidence from the council's expert, Mrs Kennell, to which the tribunal in effect itself referred:

"Q. But what we do not know from these swept paths is where it would end up if it started on the left hand side of the access?

A. Yes, that is right."

In these circumstances it seems to me that Mr Main-Thompson's third strand fails as well as the previous two.

20. At one time, on the written material before the court, I wondered if Mr Main-Thompson was going to submit that because the commissioner imposed conditions on Mr Williams, and did so on the basis that they would, as he said in his oral decision, "reduce any danger .... if it is necessary to cross the white line", therefore he was in fact finding that the access was dangerous and therefore unsuitable, but this submission was not pressed. It would have been inconsistent with the commissioner's express finding that the access was suitable. Of course risk cannot in all circumstances be eliminated entirely but the commissioner was entitled to impose conditions fit for preventing vehicles causing danger. Since there was no opposition from Mr Williams in relation to the conditions imposed by the commissioner, he could do so without needing to find that there was a realistic risk of danger being caused even in the absence of those conditions.

21. At the end of the day Mr Main-Thompson was asking this court to impose its own inexpert views, on whether or not Mr Williams' operating centre was suitable or not, on an expert transport commissioner and an equally expert transport tribunal. He submitted that on the facts found there was, in the colloquial phrase "an accident waiting to happen". He invited the court to speculate, contrary to the findings, that the personal injury accidents that had occurred in West Park Road were associated with the access. This, however, would be at least mere speculation, but in fact on the findings which I have recorded in this judgment, contrary to what both the commissioner and the tribunal stated. If the council is really concerned with accidents on this stretch of the road it has of course the power, as the local highway authority, to reduce the speed limit on West Park Road. This, at any rate to date, it has not done.

22. In sum, when regard is had to the expertise of the commissioner and the tribunal below; to all the facts carefully taken into account by the commissioner and the tribunal; to the fact that the commissioner visited the site immediately before the public inquiry which gave rise to his decision; and to the circumstances that he took into account and gave his view upon all the material put before him, and came to an answer in his discretion which reflected both that this operating centre had operated entirely successfully for over a dozen years and that the additional use for which application was now being made was limited to only in total four movements a day; it seems to me, for my part, that it is not at all a matter of surprise that the commissioner and the tribunal came to the decisions that they did, and in any event it is quite impossible to say that in doing so they arrived at a decision that was perverse, plainly wrong or one that no reasonable tribunal could arrive at.

23. For all those reasons I would dismiss this appeal.

24. LORD JUSTICE LAWS: I agree that this appeal should be dismissed for the reasons given by my Lord, Lord Justice Rix. In granting permission to appeal in this case I was concerned by the fact that the transport commissioner had not given written reasons for his decision until a date after delivery of the council's grounds of appeal and the reasons then given were arguably to some extent at variance with those given orally by the commissioner at the end of the hearing before him. But it rapidly became apparent from Mr Main-Thompson's submission that there was nothing in this complaint such as might generate a substantive ground of appeal to this court. I would merely endorse, as for his part did the Secretary of State in the skeleton argument prepared by counsel on his behalf, what was said by the tribunal at paragraph 3 of the decision:

"It is regrettable that the statement of reasons in this case was not provided before the expiry of the 28 day period for the lodging of an appeal and it is clearly desirable that all objectors should receive the statement of reasons as soon as is possible within the 28 day period to avoid allegations that the Traffic Commissioner has tailored his/her reasons to meet the grounds of appeal."

25. As regards the points on the factual merits which my Lord has fully rehearsed, I would merely add that I am entirely satisfied that Mr Main-Thompson's argument, with respect to him, comes nowhere near hailing distance of a point of law such as might undermine the successive decisions of the two specialist expert bodies below.

26. LORD JUSTICE SIMON BROWN: As Lord Justice Rix noted at the outset of his judgment, an appeal to this court from the Transport Tribunal lies only in point of law. The sole complaint in point of law now sought to be advanced on this appeal is that the decisions reached here successively by the traffic commissioner and the Transport Tribunal were perverse. Mr Main-Thompson's argument can only be that on the undisputed fact of the case those respective bodies each had no alternative but to refuse the licence: they could not properly regard this operating centre as suitable, notwithstanding its successful past use; notwithstanding its very limited proposed further use; and notwithstanding the stringent conditions and undertakings to which the licence was being made subject. For the reasons given by Lord Justice Rix I too agree that this complaint cannot be made good and that the appeal must therefore fail.

27. All I wish to add is that it seems to me almost impossible to conceive of any perversity-based appeal from the Transport Tribunal to this court being successful where, as here, there have been two successive fact-based decisions, each to the same effect, and each reached by a body whose relevant expertise and experience is inevitably greater than that which this court can bring to bear on the matter. I express the hope that few, if any, such appeals will be ventured in future.

ORDER: Application refused