Kashif Choudhury

In October 2023, the Appellant applied to the Traffic Commissioner for a restricted PSV operator’s licence. The application:

originally sought authorisation to operate two vehicles but this was subsequently reduced to a single vehicle;

gave the Appellant’s main occupation as “taxi driver”;

in response to a question about how the applicant would comply with ‘main occupation’ restrictions, stated “I am self-employed. So I will cut my hours down”;

accepted undertakings to ensure that “the laws relating to the driving and operation of vehicles used under this licence are observed” and “the rules on drivers’ hours are observed”.

On 16 October 2023, the Office of the Traffic Commissioner (OTC) wrote to the Appellant seeking further information, including:

proposed tachograph arrangements; and

“further evidence to satisfy the traffic commissioner that the PSV licence will not provide more income than your main occupation”.

The Appellant replied to the OTC on 25 October 2023. His letter included the following:

“I have been a full-time, self-employed, black cab taxi driver for over 15 years, and will continue to do this job full-time”;

“I understand the laws regarding driver’s hours and working time directives and will comply with them”;

“My PSV license will not provide more income than my main occupation because I am mainly only going to drive my PSV on the weekends, as I will remain a full-time taxi driver. I add that I have already uploaded a letter from my accountant confirming my income;

“My only work other than my intended PSV occupation, is as a full-time Hackney Cab Driver, and this will not change”;

“I work five days a week, Monday-Friday, as a Hackney Cab Driver. My usual hours are 8am-5pm. I will not work on Sundays once I get my PSV Operator License”;

“My main occupation does involve driving, (a) in a typical week, I work 9 hours a day, including breaks and going home for lunch. As I work at the airport, there are long waiting hours without driving and the actual hours I spend actually driving are on average 5 hours, (b) in a heavy week, I work over the same period, i.e., 9 hours a day, but have longer jobs and so actually drive between 6-6.5 hours”;

“I confirm that I am already working in compliance with what would be the driver hours and working time rules required for my intended PSV operation. I also confirm that, I will never exceed the hours that I am permitted to drive under the requirements of the PSV operator license”;

“If my PSV license is granted, I will work a 4-day week with the Hackney cab instead of a 5-day week. In the first year, I do not expect an overall change to my income when combining my Hackney cab hours with my PSV hours, i.e. I will expect my actual hours to approximately remain the same, in total”;

“My plan is to drive the PSV every Saturday. I intend to work a maximum of up to 9 hours in a day. I am expected to take private bookings”;

“(a) the purpose of the business is to increase my weekly income. (b) The estimated income for each month over the first year is likely to be £800-1000…(d) The yearly cost of running each PSV is likely to be £3,500.”

On 14 November 2023, the OTC again sought further information from the Appellant, including about his main occupation. The Appellant responded on 27 November 2023. Regarding the main occupation condition, he stated that, recently, his taxi earnings had been depressed by the Covid-19 pandemic and the demands of his duties as a local councillor, but his taxi earnings had increased now that those restrictions on his time had lifted. The Appellant stated that, in the previous six months, his monthly taxi earnings never fell below £3,100, and he did not expect his PSV monthly earnings to exceed £1,000.

On 29 December 2023, the OTC informed the Appellant that the Traffic Commissioner proposed to refuse his application for a restricted PSV operator’s licence. The Commissioner had three main concerns, namely whether: (i) “the main occupation will be more profitable than any PSV operations”; (ii) the Appellant was of good repute; (iii) proper maintenance arrangements were in place. The OTC letter invited the Appellant to provide further written representations and request a public inquiry.

The Appellant responded to the OTC on 11 January 2024, informing them that he would now seek authorisation for only a single vehicle and hoped that this would deal with the Traffic Commissioner’s ‘main occupation’ concerns. The OTC wrote to the Appellant again on 6 February 2024 to inform him that the Commissioner still proposed to refuse his application. The Commissioner remained concerned about the ‘main occupation’ rule and whether the Appellant was of good repute. Maintenance arrangements were no longer a cause for concern, but proposed parking arrangements were.

The Appellant wrote to the OTC on 12 February 2024, essentially repeating earlier points he had made about the main occupation rule and his good repute, and he also responded to the Traffic Commissioner’s parking concerns. The Appellant also repeated his request for a public inquiry if the Commissioner were minded to refuse his application. However, it transpired that the Appellant would be out of the country on the day listed for a public inquiry hearing (the Appellant provided supporting evidence of his absence) and, on 10 April 2024, he emailed the OTC stating that, because he had been dealing with this application for so long, he was content for the matter to be dealt with in his absence and would not request an adjournment.

A case summary was prepared by the OTC for the inquiry hearing. This did not mention any specific concern that the Appellant’s proposed PSV business might involve him breaching the law relating to drivers’ hours, although the case summary did recount the Traffic Commissioner’s concern that the PSV business might be the Appellant’s main occupation.

The public inquiry hearing was convened on 22 April 2024 but, as the Appellant had requested, it proceeded in his absence.

On 23 April 2024, the Traffic Commissioner refused the Appellant’s application for a restricted PSV operator’s licence.

The Traffic Commissioner’s reasons recite the written Appellant’s evidence that he anticipated making an annual profit / income from the proposed PSV business of £3,500 to £6,000, as compared to his annual taxi income of over £30,000. However, the Commissioner was not persuaded that the proposed PSV business would not be the Appellant’s main occupation for the following reasons:

“5…It does not to me appear a realistic business proposition to go to the trouble and expense of acquiring a minibus for the sake of additional net income of £5,000 or so a year. The cost of the minibus would take several years to pay back. I therefore consider it inherently unlikely that, once acquired, the minibus would only be used for one day a week. The bias would be in favour of using the asset as much as possible, to get a reasonable return. Mr Choudhury himself accepted that the vehicle might be used on other days apart from Saturdays. A minibus only has to generate £200 per day income to achieve a £50,000 annual turnover: most minibuses achieve far more than this.

6.

I consider it highly likely that, in reality, operation of the PSV minibus would become Mr Choudhury’s main occupation if his application were granted.”

That was sufficient to reject the Appellant’s application, but the Traffic Commissioner also went on to find that he was not satisfied that the proposed PSV business would comply with the law relating to drivers’ hours:

“7.

In his application Mr Choudhury stressed that he would be adhering to the drivers’ hours regulations. But his proposed pattern of work, with Fridays and Sundays off and other days spent driving taxis or (on Saturdays) the minibus, contradicted this, as the pattern does not appear to allow for the regular 45 hour weekly rest to be taken. I cannot therefore be satisfied that adequate arrangements are in place for securing compliance with the requirements of the law relating to the driving and operation of vehicles (section 14ZC(1) of the 1981 Act refers).

Finally, we should note that the Traffic Commissioner added:

“9.

Had I been able to question Mr Choudhury in person about the main occupation criterion and the issue of drivers’ hours, it is just about conceivable (though I think unlikely) that he might have been able to satisfy my concerns. But on the information in front of me, I am not satisfied”.

Section 1(1) of the Public Passenger Vehicles Act 1981 (“PPVA 1981”) contains the following general definition of “public service vehicle”:

“(1)

Subject to the provisions of this section, in this Act “public service vehicle” means a motor vehicle…which–

(a)

being a vehicle adapted to carry more than eight passengers, is used for carrying passengers for hire or reward; or

(b)

being a vehicle not so adapted, is used for carrying passengers for hire or reward at separate fares in the course of a business of carrying passengers.”

It is generally understood that a typical taxi, operating as such, is unlikely to be a public service vehicle under the PPVA 1981 because the vehicle will not be used for carrying passengers for hire or reward at separate fares. As the Public Service Vehicle Operator Licensing Guide (pub. 15 March 2023 by the Traffic Commissioners) puts it:

“If you operate smaller vehicles (those with eight or less passenger seats) for hire or reward it is likely that you will require to be licensed by a local authority under a private hire or taxi regime.

…

If you do not meet any of the above criteria it is likely that your small vehicle will not fall within the requirements to be classed as a PSV. It is important that you seek appropriate advice from relevant licensing authorities. Some examples may include where:

… - you run a taxi or private hire business and charge for the hire of the vehicle as a whole. You will not be charging separate fares so your vehicle is not classed as a PSV. You will need a taxi or PHV or PHC licence issued by the local authority if a licensing system is in force within your area of operation”

Section 12(1) of PPVA 1981 provides that “a public service vehicle shall not be used on a road for carrying passengers except under a PSV operators’ licence…”.

Section 13(1) of PPVA 1981 provides that a PSV operator’s licence may be either a standard licence or a restricted licence. Under section 13(3), a restricted licence permits the licence holder to do two things:

use public service vehicles not adapted to carry more than eight passengers; and

use public service vehicles not adapted to carry more than sixteen passengers but only if that is done otherwise than in the course of a business of carrying passengers or “by a person whose main occupation is not the operation of public service vehicles adapted to carry more than eight passengers”.

On an application for a restricted PSV operator’s licence, a Traffic Commissioner must consider whether the requirements of sections 14ZB and 14ZC of PPVA 1981 are satisfied (section 14(2)). If so, the Commissioner must grant the licence (section 14(3). The requirements of section 14ZB are not in issue on this appeal. The requirements of section 14ZC include the following:

“there will be adequate arrangements for securing compliance with the requirements of the law relating to the driving and operation of [vehicles proposed to be used under the licence]” (section 14ZC(1)(b)).

PPVA 1981 says nothing about what constitutes ‘the law relating to the driving and operation of vehicles’ proposed to be used under a PSV licence

While PPVA 1981 does not define the ‘law relating to the driving and operation’ of vehicles used under a PSV licence, this clearly includes the drivers’ hours provisions of Part VI of the Transport Act 1968 (sections 95 to 103). Section 95(2)(a) of the 1968 Act provides that Part VI applies to “passenger vehicles”, which includes public service vehicles (see below).

Part VI of the 1968 Act begins with a statement of its intended purpose, in section 95(1):

“(1)

This Part of this Act shall have effect with a view to securing the observance of proper hours or periods of work by persons engaged in the carriage of passengers or goods by road and thereby protecting the public against the risks which arise in cases where the drivers of motor vehicles are suffering from fatigue.”

The vehicles to which Part VI of the 1968 Act applies are set out in section 95(2). They include “passenger vehicles” by which Part VI means:

public service vehicles; and

In the 1968 Act, “public service vehicle” has the same meaning as in the PPVA 1981 (section 159(1) of the 1968 Act).

Part VI of the 1968 Act also applies to vehicles falling within the regime provided for by Regulation (EC) No 561/2006 which would not otherwise fall within Part VI (section 95(2)(c) of the 1968 Act). Article 1(b) of the Regulation provides that it applies to “the carriage by road…

For the purposes of Part VI of the 1968 Act, “a driver” means a person who drives a vehicle in the course of employment and a person who drives “a vehicle for the purposes of a trade or business carried on by him” (section 95(3)). In Part VI, the former type of driver is referred to as “an employee-driver” and the latter as “an owner-driver”.

The complexity of the drivers’ hours rules within Part VI of the 1968 Act is illustrated by the fact that what follows is no more than a fairly brief summary of the rules.

Section 96(1) of the 1968 Act provides the following general rule:

“a driver shall not on any working day drive a vehicle…for periods amounting in the aggregate to more than ten hours”.

However, the general rule in section 96(1) is subject to certain provisos:

where a driver has been on duty for a period of five and a half hours (continuously or in aggregate) without an interval of at least half an hour for “rest and refreshment” and the end of that period does not mark the end of the working day, the driver is required to take a ‘rest and refreshment’ interval of at least half an hour (section 96(2));

as a general rule, a driver’s working day must not exceed eleven hours (section 96(3));

as a general rule, where a driver has worked for two successive working days, the driver must have “an interval for rest” for a period not less than eleven hours (section 96(4));

as a general rule, a driver shall not be on duty in any working week for an aggregate period of more than sixty hours (section 96(5));

as a general rule, a driver shall be off duty for a period of not less than 24 hours in each working week (section 96(6));

as a general rule, if, during each 24 hour period (beginning at midnight) of the working week, a driver does not drive a vehicle to which Part VI applies for more than four hours, the above rules do not apply (section 96(7));

if a driver does not, on any working day, drive any vehicle to which Part Vi applies, section 96(8) provides:

For the above purposes, “working day” is defined by section 103 of the 1968 Act. The definition provides for periods during which a driver is on duty that are not followed by a rest interval of at least eleven hours to be aggregated with a successive period/s until there is such an interval.

Certain of the above general rules are modified by article 4 of the Drivers’ Hours (Passenger and Goods Vehicles) (Modifications) Order 1971 where, during any working day, the driver spends all or the greater part of time driving vehicles to which Part VI applies in the form of passenger vehicles. These modifications add further complexity, and hence difficulty in identifying the law relating to time spent driving passenger vehicles.

For the purposes of the 2005 Regulations, regulation 2 defines:

Regulation 3 of the 2005 Regulations sets out the persons to whom the Regulations apply, which includes self-employed drivers described in regulation 3(2) or (3). Regulation 3(3) is not relevant for present purposes because it concerns vehicles driven pursuant to the European agreement concerning the work of crews of vehicles engaged in international road transport of 1st July 1970 and, whatever driving the Appellant is doing, he is not doing that. Regulation 3(2) refers to self-employed drivers who, in the course of their employment drive or travel in or on vehicles which:

are vehicles within the meaning of Article 4(b) of the Community Drivers’ Hours Regulation (Regulation (EC) No 561/2006). The vehicles within Article 4(b) include “any self-propelled vehicle travelling on the road…normally used for carrying passengers”; and

are not vehicles described in Article 3 of the Community Drivers Hours Regulation. Those vehicles include “vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres”; and

are not exempted from the Community Drivers’ Hours Regulation by regulation 2 of the Community Drivers’ Hours and Recording Equipment Regulations 2007. The exempted vehicles include things like certain ambulances, vehicles with not more than 17 seats used only for the non-commercial carriage of passengers, and vehicles propelled by steam.

Pausing for a moment, if one considers the self-employed driver of a typical taxi against the cumulative requirements of regulation 3(2) of the 2005 Regulations, then it is more likely than not that: requirement (a) would be satisfied because a taxi is normally used to carry passengers; requirement (b) might or might not be satisfied depending on how the taxi is operated; requirement (c) would be satisfied because there is no obvious exemption category under the 2007 Regulations.

Regulation 4(1) of the 2005 Regulations provides a general rule that the working time of a self-employed driver (or mobile worker) shall not exceed 60 hours in a week. This is subject to regulation 4(2) which provides that, in the applicable reference period (see regulation 4(3)), the driver’s working time must not exceed an average of 48 hours each week.

Breaks are dealt with by regulation 7 of the 2005 Regulations. A driver must not work for more than six hours without a break (regulation 7(1)). A working time period of more than six but less than nine hours must be interrupted by a break of at least 30 minutes (regulation 7(2)). Periods of more than nine hours must be interrupted by a break of at least 45 minutes (regulation 7(3)).

Rest periods are dealt with by regulation 8 of the 2005 Regulations. Regulation 8(1) effectively extends the daily and weekly rest period requirements of the Community Drivers’ Hours Regulation to all mobile workers to whom they do not apply under that Regulation. In the case of self-employed drivers, regulation 8(3) requires them to “take all reasonable steps” to comply with the rest period requirements set out in the Community Drivers’ Hours Regulations. Under the Community Drivers’ Hours Regulation:

article 8(6) requires a driver, in any two consecutive weeks, to take two regular weekly rest periods or one regular weekly rest period and a 24 hour rest period but with provision for this to be compensated for in the third week;

Article 4(h) defines “regular weekly rest period” as “any period of rest of at least 45 hours”.

While there is some regional variation, in most cases drivers of private hire vehicles in England and Wales are licensed pursuant to section 51 of the Local Government (Miscellaneous Provisions) Act 1976. The grounds on which a licence may be refused under section 51(1) are broadly expressed (for example, where the local authority is not satisfied that the applicant “is a fit and proper person to hold a driver’s licence”). However, upon granting a licence, a local authority may attach such conditions “as they may consider reasonably necessary”. A similar legislative approach is taken to the grant of licences to operators of private hire vehicles under section 55(1) of the 1976 Act.

The Appellant argues that the Traffic Commissioner’s decision to refuse his application for a restricted operator’s licence was flawed because:

the Commissioner overlooked his detailed financial evidence which demonstrated that his projected annual PSV income (£3,500-£6,000) would be secondary to his primary occupation of taxi driver. For the last financial year, his income from taxi driving was approximately £32,000;

the Commissioner overlooked a weekly schedule, submitted in evidence, which demonstrated that his proposed PSV business would only operate on Saturdays “ensuring it does not interfere with my main job as a taxi driver”;

the Commissioner was wrong to find that it was not financially viable to operate the PSV business only one day each week. The Appellant’s market analysis showed that the proposed business model was financially viable;

the Appellant was committed to “rigorous management of driver hours to ensure safety and compliance within my PSV operation”, and he goes on to describe “key elements of my strategy”.

The appellant intended to use the minibus for private hire work, as such he would be required to adhere to the EU drivers’ hours as this would not be classed as a regular service and therefore not exempt.  

The Office of the Traffic Commissioner wrote to the appellant on the 6th February 2024 indicating he was minded to refuse the application, the letter did not expressly raise a concern with the proposed weekly rest periods, but did more generally raise the question about his understanding of the regulations whereby it was stated;

“..Within correspondence received, you have suggested a misinterpretation of the rules, a lack of understanding of the regulations…”

The letter further invited the Appellant to submit a written representation, which should include;

“..As a minimum your response should address all of the following points:

• Main occupation

• Repute

• Compliance with the law..”

In the appellants written reply to the Traffic Commissioner he stated;

“..it is usual for me to take off Fridays (for religious reasons) and Sundays (to spend time with my children), and I have no wish to change my long established working pattern..”

Also,

“..I have a very good understanding of PSV safety laws such as EU driver hours, working time directive and compliance of breaks, maximum amount of driver hours to be worked..”

The Traffic Commissioners decision at Para 7 stated;

The proposal was to drive a taxi on Monday to Tuesday and the PSV Minibus on Saturdays, taking rest days on Friday and Sunday. This pattern of rest is split and therefore not a continuous period,  the Appellant clearly stated his intention to work on Saturdays and that he did not want to change his long established working pattern. This pattern does not allow in any week for a continuous 45 hour weekly rest period to be taken and is therefore not in accordance with the law.

We note that the Appellant revised his working pattern proposal to allow for Monday and Sunday as rest, but even if relevant this would only allow for one 24 hour period in each working week as the working week restarts at 00:00 Monday.   We note the traffic Commissioner was not considering the proposed Monday and Sunday rest days because the Appellant changed his position during process of this Appeal.  (This is included as observation and not relevant to our decision.)

The Appellant was given an indication that the Traffic Commissioner was concerned with a lack of understanding of the regulations by his letter of the 6th February 2024, the Appellant did not adequately address those concerns by reply, the proposed weekly working pattern showed a lack of understanding to the laws relating to drivers hours.

It is for these reasons we find that the Traffic Commissioner was correct in his conclusion in regards to compliance with drivers hours and adequate weekly rest.

The Traffic Commissioner must refuse an application for a restricted PSV operator’s licence if not satisfied that there are adequate arrangements for securing compliance with the law relating to the driving and operation of vehicles (sections 14(2) and 14ZC of the 1981 Act). That law includes the ‘main occupation’ rule in section 13(1).

In this case, the Traffic Commissioner found that the Appellant’s proposed PSV business would entail contravention of the main occupation rule because it was not “a realistic business proposition to go to the trouble and expense of acquiring a minibus for the sake of additional net income of £5,000 or so a year” and it was “inherently unlikely that, once acquired, the minibus would only be used for one day a week”.

It seems to me that the Commissioner’s finding could only have been based on one of two conclusions. Either the Appellant’s business model was flawed, or he knowingly gave a false description of his plans for the PSV business. We consider the latter explanation more likely because the Appellant’s business plan did not anticipate him running an insolvent business.

The Traffic Commissioner confirmed that the Appellant’s good repute was not in issue. There was also undisputed evidence before the Commissioner that the Appellant had served as a local councillor a matter which certainly could not have detracted from his credibility. I also record my view that it cannot be considered inherently implausible for an individual to wish to establish a business that would generate a relatively modest profit, but which would nevertheless, over time, allow the individual to pay off a loan for a valuable asset such as a minibus. In those circumstances, I consider that the requirement to give adequate reasons for a decision called for some further explanation as to why the Commissioner did not accept that the Appellant intended to operate a single minibus on only one day each week. If the Commissioner considered the Appellant dishonest, the reasons should have made that clear and explained why. If the Commissioner rejected the Appellant’s case for some reason other than dishonesty, we do not think it was open to the Commissioner to have rejected it on the sole ground that his proposed business, while solvent, could be more profitable so that his PSV business was bound to become his main occupation. Provided regulatory requirements are met, anyone is entitled to run a business as they see fit.

However, the Traffic Commissioner’s failure to give adequate reasons for finding that the main occupation rule would be breached would not matter (not be material) if the Commissioner’s alternative basis for rejecting the Appellant’s application was free of legal or factual errors. That alternative basis was that the Appellant’s proposed PSV business would entail breach of the laws relating to driver’s hours. As explained above, Upper Tribunal Members Fry and Pepperell reject the challenge to the alternative basis on which the Commissioner rejected the Appellants application.

The Commissioner’s reason for finding that the proposed PSV business would not comply with the law relating to driver’s hours was that “his proposed pattern of work…does not appear to allow for the regular 45-hour weekly rest to be taken”. The Commissioner’s reasons do not identify the legal basis for this requirement for a ‘regular 45 hour weekly rest’. Given the Appellant’s circumstances, that is his proposal to work as a self-employed taxi driver and drive a minibus one day a week, and the complexity of the drivers’ hours legislation, something more than this was required in order to supply the Appellant with a sufficient explanation for the rejection of his application.

The Appellant proposed to operate a minibus for nine hours on one day each week. The Traffic Commissioner cannot therefore have restricted his driver’s hours compliance analysis to the hours that the Appellant proposed to spend driving his minibus. The Traffic Commissioner must have aggregated the hours that the Appellant would spend driving his taxi with the hours he intended to spend driving the minibus.

I do not think that the Traffic Commissioner had Part VI of the Transport Act 1968 in mind as the source of the 45-hour weekly rest requirement. Indeed, it is difficult to see how Part VI could have been relied on. Part VI applies to “passenger vehicles” which means “public service vehicles” (and certain other vehicles which are not relevant for present purposes): section 95(2)(a). For the purposes of Part VI, “public service vehicles” has the same meaning as in the PPVA 1981. As explained above, a typical taxi, operated as such, is not a public service vehicle for the purposes of the PPVA 1981 and this Appellant had clearly not been required to obtain a PSV operator’s license in order to operate as a taxi driver.

The Traffic Commissioner probably derived the 45-hour weekly rest requirement from the Road Transport (Working Time) Regulations 2005 which, as mentioned above, adopt the rest period requirements of Article 8 of the Community Drivers’ Hours Regulation. But the application of the 2005 Regulations was not clear-cut. The 2005 Regulations contain a general definition of ‘passenger vehicle’, which would not catch a typical taxi (not being adapted or constructed to carry more than eight passengers). If so, what was the legal basis for aggregating the Appellant’s taxi-driving with his minibus driving? It could be, the argument is respectable enough, that the general definition of ‘passenger vehicle’ is subject to the complex application provisions in regulation 3 of the 2005 Regulations. But, even if that is the case, there remained the question whether Article 3 of the Community Drivers Hours Regulation applied to the Appellant’s taxi-driving and/or proposed PSV business.

It did not go without saying (was not obvious) that the hours spent by the Appellant driving a taxi counted, and fell to be aggregated with, hours spent driving a minibus, under the Road Transport (Working Time) Regulations 2005. The requirement to provide adequate reasons required the Appellant to be given some explanation as to which of the laws relating to drivers’ hours would be breached by his proposed PSV business, and why.

Alternatively, I consider that the Traffic Commissioner’s reliance on the Appellant’s non-compliance with the law relating to drivers’ hours rule was, in the circumstances of this case, procedurally unfair. I accept, of course, that it is for an applicant to make good an application for an operator’s licence but, in this case, the Appellant was informed, before the public inquiry, that the Commissioner had certain specific concerns:

16 October 2023 – OTC sought further information about matters including proposed tachograph arrangements and “further evidence to satisfy the traffic commissioner that the PSV licence will not provide more income than your main occupation”;

14 November 2023 – OTC again sought information relevant to satisfaction of the main occupation rule;

29 December 2023 - OTC informed Appellant that the Commissioner proposed to refuse his application, and had three main concerns: (i) “the main occupation will be more profitable than any PSV operations”; (ii) whether the Appellant was of good repute; (iii) whether proper maintenance arrangements were in place;

6 February 2024 – OTC inform Appellant that Commissioner remain concerned about the ‘main occupation’ rule, whether the Appellants was of good repute and, while maintenance arrangements were no longer a cause for concern, proposed parking arrangements were.

At no point was it specifically drawn to the Appellant’s attention that the Traffic Commissioner was minded to refuse his application because he had not demonstrated that the proposed PSV business would comply with the law relating to drivers’ hours. I do not think that the Appellant could reasonably have anticipated that, along with the specific concerns identified in correspondence over a number of months, the Commissioner might reject the application because the proposed PSV business would breach the law about drivers’ hours. Given the dealings between the OTC and this Appellant about his licence application, in my judgment the Commissioner acted unfairly by relying on drivers’ hours compliance without putting the issue to the Appellant. There was no oral evidence, since the Appellant did not attend the public inquiry, and so this cannot have been an issue that emerged for the first time at the inquiry hearing.

It is unfortunate that, despite extensive deliberations, the panel convened to decide this appeal could not agree. This happens so rarely that I cannot recall any other instance, but majority decisions are of course anticipated by an appellate scheme which vests decision-making responsibilities in three individuals.

When supplying the members with a draft of my reasons for allowing this appeal, I repeated the legal guidance given before our post-hearing deliberations which, in summary, was as follows:

instruction on the law is the judge’s responsibility, instruction on transport industry matters is the members’ responsibility;

any perception that this operator sought to obtain an unfair commercial advantage through seeking a restricted licence was an irrelevant consideration. It is not reflected in the express statutory criteria in PPVA 1981 and the Traffic Commissioner’s reasons for refusing the application related to the main occupation test and drivers’ hours;

it is a legal misdirection to construe the restricted licence provisions of s.13(3) of PPVA 1981 as if they included, or implied, a fair competition requirement beyond that inherent in the main occupation test;

fairness is an absolute standard. The ‘plainly wrong’ test is irrelevant when assessing whether proceedings before the Traffic Commissioner were conducted fairly;

the Upper Tribunal’s appellate role should be noted. We should take care, in deciding an appeal, not to stray into Traffic Commissioner responsibilities by starting with the question whether an operator should or should not be granted an operator’s licence.

I cannot agree with the member’s analysis for the following reasons:

in my view, the key flaw in the Traffic Commissioner’s drivers’ hours reasons was that they did not explain the legal basis for aggregating the Appellant’s hours spent driving a taxi with the hours proposed to be spent driving a PSV. That is not addressed in the Members’ reasons. The principal purpose of reasons for a decision is to enable the losing party to know why he lost, but it seems to me that this Appellant is no better informed now, as to the legal basis for aggregating his taxi driving hours with his proposed PSV driving hours, than he was when he received the Commissioner’s decision;

before the Traffic Commissioner decided the Appellant’s application for a restricted PSV operator’s licence, certain specific deficiencies were drawn to his attention (which the Appellant then, without exception, sought to address). At no point was the Appellant specifically informed that the Commissioner was concerned that the proposed PSV business might entail breach of the law relating to drivers’ hours. The Members’ reasons do not explain why, despite no specific concern about drivers’ hours having been drawn to the Appellant’s attention, the Commissioner fairly rejected the application on the basis that the Commissioner was not satisfied that drivers’ hours rules would be complied with;

it seems to me that the Members’ reasons show that they probably started in the wrong place, by asking themselves whether this Appellant’s proposed PSV business would entail breach of drivers’ hours rules. Proceedings before the Upper Tribunal are an appeal against a Traffic Commissioner’s decision which means the starting point should be the approach taken by the Commissioner. To do otherwise, by starting with the merits of the application that was before the Commissioner, risks diluting the value of the right of appeal by overlooking matters such as the adequacy of a Commissioner’s reasons or the fairness of the decision-making process.

The Appellant’s appeal against the Traffic Commissioner’s refusal to grant his application for a restricted PSV licence is dismissed. If the Appellant still wishes to operate public service vehicles under a restricted licence, he must make a fresh licence application to the Traffic Commissioner.