IN THE COURT OF THE TRANSPORT TRIBUNAL
ROAD HAULAGE APPEALS
Appeal 1/2000
Appeal by R GRAY SENIOR, R A GRAY & J C GRAY
(TRADING AS H & R GRAY) Appellants
- and -
COLIN AND FIONA GRAHAM Respondents
Before: Hugh Carlisle QC, President,
John Whitworth, Esq,
Leslie Milliken, Esq,
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O R D E R
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SITTING in Edinburgh on Tuesday 15 February 2000
UPON READING the decision of the Deputy Traffic Commissioner for the Scottish Traffic Area made on 15 November 1999 and published in “Applications and Directions” No:1533 dated 6 December 1999
AND UPON READING the Notice of Appeal dated 23 December 1999
AND UPON HEARING Mr Michael Whiteford of Jeffrey Aitken, Solicitors for the Appellants, and Mr Graham in person for the Respondents
IT IS HEREBY ORDERED that the Appeal be DISMISSED and that with effect from 2359 hours on 30 April 2000 the premises at Mackeanston Farm, Doune, Perthshire cease to be specified as an operating centre on the Appellants’ licence.R GRAY SENIOR, R A GRAY & J C GRAY
(TRADING AS H & R GRAY) Appellants
- and -
COLIN AND FIONA GRAHAM Respondents
1/2000
R E A S O N S
This was an appeal against the determination of the Deputy Traffic Commissioner for the Scottish Traffic Area on 15 November 1999 that premises at Mackeanston Farm, Doune, Perthshire were unsuitable as an operating centre pursuant to s.31 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).
The background to the appeal appears from the documents, the transcript of the public inquiry and the written decision of the Deputy Traffic Commissioner and is as follows:
This matter was previously considered by the Transport Tribunal on 28 May 1999. They gave their written decision on 21 June 1999 and allowed the appeal by the present Appellants from the decision of the Deputy Traffic Commissioner made on 24 December 1998.
The Tribunal’s decision sets out the history in detail. The Deputy Traffic Commissioner had found that the premises at Mackeanston Farm were unsuitable as an operating centre. It did not appear that he had considered the possibility of attachment of conditions pursuant to s.32 of the Act and the Tribunal remitted the matter to the Deputy Traffic Commissioner for further hearing. Reference is made in particular to paragraphs 7, 8 & 9 of the Decision and to the limited nature of the remission. It is noteworthy that this was made to the same Deputy Traffic Commissioner: he was not required to conduct a full rehearing and was entitled to have all previous evidence in mind.
The parties were called up to a new public inquiry and this took place on 15 October 1999. The call-up letter had put in issue not only the review under s.31 of the Act but also the original application to increase the numbers of authorised vehicles. The latter had been dismissed by the Deputy Traffic Commissioner and had not been pursued on appeal, when Mr Whiteford had submitted on the Appellants’ behalf that they were seeking only to maintain the status quo.
At the start of the public inquiry on 15 October 1999 there was a discussion as to the extent of the remission by the Tribunal. Both Mr Graham and Mr Whiteford were in agreement that the only live issue was the determination under s.31 of the Act and that it was the possibility of middle ground by way of conditions that had been referred back. Having so agreed with Mr Graham’s comments, Mr Whiteford then submitted that Mr Graham had no standing in the s.31 review proceedings. No such point had been made to the Tribunal and the Deputy Traffic Commissioner was not reminded of the provisions of paragraph 3(5) of Schedule 4 of the Goods Vehicles (Licensing of Operators) Regulations 1995 by which “any ..... person may appear at an inquiry at the discretion of the Traffic Commissioner”. Mr Graham expressly asked if there was such a provision:
“Well what I’m looking for is to whether there’s any provision for the view of other parties other than the operator’s to be taken into account in the review process. If there isn’t ..... it seems to be a very one-sided procedure .....”
Mr Whiteford repeated his submissions to the effect that Mr Graham was not entitled to be heard. Having earlier agreed on the extent of the remission with Mr Graham, Mr Whiteford at this stage also submitted that the Tribunal’s decision was unclear and that clarification was necessary.
Mr Graham then made submissions on the possibility of compromise, as had been suggested by the Tribunal. Mr Whiteford set out the Appellants’ position and was supported by evidence from Mr Gray himself about in particular their hours of business. Mr Whiteford urged the Deputy Traffic Commissioner to obtain clarification from the Tribunal and the Deputy Traffic Commissioner agreed to write a note to this effect and thereafter to decide how to proceed:
“...... I’m not quite sure what (the Tribunal is) wanting from me so I will find out and if it means that we reconvene then it will have to be. But I’m not going to do anything precipitous if I deem it necessary that we need to discuss matters further.”
On the following day, 16 October 1999, Mr Graham wrote to the Tribunal and raised the need for clarification. The President replied in a Note dated 25 October 1999 that the only matter in issue had been the s.31 determination, as set out in sub-paragraph (iv) above. This Note was sent to the Deputy Traffic Commissioner and to both parties.
The Deputy Traffic Commissioner subsequently came to his decision that the premises were unsuitable for use as an operating centre. He had viewed the premises on two occasions and expressly considered the application of s.32 of the Act. He concluded:
“In the whole circumstances I am of the view that compromise in this case is not appropriate. I accordingly adhere to my decision. This is not a case where I consider it appropriate to apply the provisions of s.32 of the Act.”
At the start of the hearing of the appeal we gave leave to Mr & Mrs Graham to be added as parties to the appeal. However, we refused them leave to introduce a petition signed by neighbours since this was dated 7 February 2000 and its admission in evidence was prohibited by paragraph 9(2) of Schedule 4 of the Transport Act 1985.
The Notice of Appeal raises various points but essentially these were narrowed to three issues. First, Mr Whiteford submitted that part of the public inquiry had been stated to be “off the record” and that the Deputy Traffic Commissioner ought not subsequently to have taken into account what had then been said. Second, Mr Whiteford submitted that the Appellants had had the expectation of a full hearing and that this had been denied them. Third, he reminded the Tribunal of the power “to make such order as they think fit” (paragraph 9(1)(a) of Schedule 4 of the Transport Act 1985) and invited us to make our own compromise: he asked for leave to introduce additional evidence on this aspect.
On the first point Mr Whiteford submitted that the Notice of Appeal was dated 23 December 1999 when events were still fresh in his mind. His referral in ground 9 to a statement by the Deputy Traffic Commissioner that part of the public inquiry was to be “off the record and not to be recorded in any formal notes” was his recollection of what had been said at the hearing. He submitted that over half the transcript (from page 37 onwards) should not have been transcribed or taken into account by the Deputy Traffic Commissioner. Mr Whiteford agreed that the transcript did not state that any part was “off the record” and that its accuracy had not been challenged prior to the hearing of the appeal. We asked Mr Graham for his comments on this and he stated that he had no recollection of any reference to words such as “off the record” being made and that he himself had gone through the transcript again to check this.
It is a serious matter to challenge the accuracy of a transcript and in particular to assert omission of the type mentioned. Such a challenge should be done in a formal manner, by way of an application to the Tribunal, with copies to those involved. Thereafter the comments of the transcribers should be sent to the Tribunal for them to decide how to proceed. It is to be noted that Mr Whiteford does not suggest that the transcript contains matters which did not occur and we think that it is plain from its wording that it was all on the record. We reject the submission that all the matters transcribed should not have been considered by the Deputy Traffic Commissioner.
Mr Whiteford’s next point was that the Deputy Traffic Commissioner left his clients with the impression that there was to be a further hearing and that his failure to reconvene was a breach of the rules of natural justice. We have to say that we also find that this has not been made out. On the contrary, the Deputy Traffic Commissioner expressly stated that he would only reconvene if he considered that this was necessary. By coincidence he received the President’s Note before he had himself sought clarification. It was expressly accepted on the hearing of the appeal by both Mr Whiteford and Mr Graham that the President’s Note was both accurate and non-controversial. Thereafter the Deputy Traffic Commissioner was able to and did reach a decision. This was of great importance, as he recognised, but the point itself is short and not capable of great elaboration.
We are satisfied that the Deputy Traffic Commissioner properly directed himself and that he had all aspects in mind when he made his decision. He had viewed the premises twice and these had been the subject of two public inquiries. He expressly directed himself to the issue which the Tribunal had raised. It has to be stated that, despite his prior agreement with Mr Graham as to what had occurred at the first appeal, it was Mr Whiteford who introduced the need for clarification from the Tribunal and who objected to Mr Graham’s appearance. Insofar as the second public inquiry became overly concerned with procedural matters we do not think that this was caused by either the Deputy Traffic Commissioner or Mr Graham.
Mr Whiteford’s final submission was that there should be no further remission back but that the Tribunal should resolve the appeal by making its own compromise order. Mr Graham supported this to the extent that he also wanted the matter to be resolved as soon as possible. We have already rejected Mr Whiteford’s other submissions and it follows that this submission does not arise. However, we think it necessary to make the following comments. As we set out in our earlier decision, the number of vehicles at the operating centre had increased rapidly since 1993. The Act provides for the review of operating centres every five years and the Tribunal is now receiving appeals in such cases. The premises in question have sometimes been used for many years as operating centres and it may come as a surprise to operators that this use can now be called into question. Nevertheless this is what the Act requires. Since s.32 of the Act does introduce the power to attach conditions it is apparent that a degree of compromise is possible and it was for this reason that we remitted the matter back to the Deputy Traffic Commissioner. However, having read the transcripts of both public inquiries and having heard Mr Whiteford, it is clear to us that the Deputy Traffic Commissioner was right in saying that this was not a case in which compromise was appropriate. Moreover, the additional evidence introduced by the Appellants, for which we gave leave, does nothing to change our view.
Accordingly the appeal is dismissed. Our order will take effect at 2359 hours on 30 April 2000 when the premises at Mackeanston Farm will cease to be specified as an operating centre on the Appellants’ licence. It will be for the Traffic Commissioner to decide the period after which the order should be enforced by way of proceedings under s.26 of the Act.