Appeal No. UA-2021-002166-NT
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER (Transport)
TRAFFIC COMMISSIONER APPEALS
ON APPEAL from the DECISION of the HEAD of the TRANSPORT REGULATION UNIT
Dated 4 January 2021
Before:
Kenneth Mullan Judge of the Upper Tribunal
Mr David Rawsthorn Member of the Upper Tribunal
Ms Kerry Pepperell Member of the Upper Tribunal
Appellant:
Oakridge Agri Ltd
Attendances:
For the Appellant: Mr Cathal Burns
For the Respondent: None
Type of hearing: Face-to-face oral hearing
Date of hearing: 24 May 2022
Date of decisions: 28 June 2022
DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be ALLOWED.
SUBJECT MATTER:- Application for a standard national licence; refusal on foot of failure to provide information and documentation; the duty to give reasons;
CASES REFERRED TO:- NT/2013/82 Arnold Transport & Sons Ltd v DOENI; NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI; Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ. 695;
REASONS FOR DECISION
This is an appeal from the decision of the Head of the Transport Regulation Unit (‘TRU’) to refuse the Appellant’s application for a standard national goods vehicle operator’s licence.
The TRU is part of the Department for Infrastructure (‘the Department’)
Background
The factual background to this appeal appears from the documents and the Head of the TRU’s decision and is as follows:-
On 1 September 2020 an application for a standard national goods vehicle operator’s licence was received in the Department. The application sought authorisation for four vehicles and four trailers. The application was made on behalf of the appellant company by Mr Cathal Burns
On 7 September 2020 the Department wrote to Mr Burns acknowledging receipt of the application and seeking supporting documentation. The documentation sought was as follows:
A signature and date on the application declaration
The registration number of the vehicle(s) to be specified on the licence of known together with the gross plated weight of each vehicle
Confirmation that the legislative requirement of a formal arrangement for access at all times to at least one vehicle registered or in circulation in the UK or whether it was intended that the vehicle would be purchased on the grant of the application
A signature and date on the transport manager declaration
A copy of the nominated transport manager’s original certificate of qualification
An explanation as why there had been a failure to declare that Mr Burns was the transport manger on another application and why he had failed to declare that an application for another licence had been refused
An explanation of the circumstances leading up to the declared imposition of a fine in July 2018 for the offence of failing to download a tachograph
In various items of email correspondence to the Department dated 15 September 2020, Mr Burns –
attached a signed and dated application declaration.
indicated that the reason why he had not added the registration number of a vehicle to the application was that he did not have one. He added that if he was successful in his licence application he would either buy a vehicle using ‘traditional HP’ or lease one.
stated that according to his own records his original CPC certificates were posted to Leeds in relation to another licence on which he was the nominated transport manager and were not returned. He asked whether the certificates had been retained on file.
asserted that in the application he had declared the address of the operating centre for the licence on which he was the nominated transport manger and the number of hours he worked for them.
stated that he had not declared details of the failed application for an operator’s licence as his solicitor had advised him to appeal against the decision to refuse.
provided further details of the circumstances leading up to the declared imposition of a fine in July 2018 for the offence of failing to download a tachograph
In correspondence dated 28 September 2020 to Mr Burns the Department referred to the correspondence of 7 September 2020 and asserted that additional documentation (details of which were set in an annex to the correspondence) remained outstanding. The Department stated that if Mr Burns did not provide the additional documentation by 12 October 2020 the application would be refused. The additional documentation stated to be required was:
A signed and dated transport manager declaration
The nominated transport manager’s original certificate of qualification
In email correspondence dated 13 October 2020, Mr Burns made the following replies:
He attached the signed and dated nominated transport manager’s declaration adding that he had returned this in September 2020
He stated that he had been having difficulties obtaining a copy of his original transport manger certificate of qualification from the examining body due to Covid-19 and staff shortages. He noted that the Department would have a copy of this as he was the nominated transport manager on another operator’s licence.
In correspondence dated 12 November 2020, the department indicated that the Deputy Head of the TRU had asked for the following additional information:
Information about the future working relationship between the applicant company and Oakridge Meats Ltd
As Mr Burns was the nominated transport manager on the licence held by Oakridge Meats Ltd, details of the number of hours spent working for Oakridge Meats Ltd and a breakdown of those hours in relation to specific tasks
Clarification as to whether Mr Burns undertook any additional work for Oakridge Meats Ltd such as driving
Clarification as to how many hours Mr Burns intended to spend as transport manager for Oakridge Agri Ltd
An aerial image of the proposed operating centre clearly marked with the parking spaces for four vehicles and four trailers and confirmation as to whether the vehicles could enter the operating centre in forward gear
Evidence that Mr Burns had requested a duplicate copy of his CPC certificate from the issuing body
Given that Mr Burns had gained his CPC qualification in April 2008, details of any refresher training undertaken with the last five years and if there was none, confirmation as to whether Mr Burns would be willing to agree to a specified undertaking
The provision of a signed and completed transport manager form
In the correspondence of 12 November 2020 the Department stated that if the additional information noted in the previous paragraph was not received by 26 November 2020 that might result in the refusal of the application.
In email correspondence dated 25 November 2020, Mr Burns made the following replies:
He would work for Oakridge Meats Ltd for 7 hours per day and for his own company for 3 hours per day resulting in 35 hours per week for Oakridge Meats Ltd and 15 hours for his own company
He was available as an emergency driver for Oakridge Meats Ltd and had driven for that company for a total of 33 hours in the previous four months
His business model for his own company was that the work was seasonal and he would only be busy between ‘late July to March’. He had not ruled out looking for ‘out of season’ work. He noted that if his own company was working at full capacity he would ‘most likely’ leave his role in Oakridge Meats Ltd but in the current uncertain times this was a ‘long way off’
He attached aerial photographs of the operating centre with an explanation of vehicle access points
Since 2008 he had completed 10 modules (80 hours) of CPC training and had worked in the industry as a driver for 20 years
He had printed off his transport manager form
In correspondence dated 4 January 2021, Mr Burns was informed that the application for a goods vehicle operator’s licence had been refused. The correspondence set out the following reasons for the refusal:
‘The application has … been refused under Section 7(1) of the above act given that it remains incomplete. The documentation requested has not been received and no explanation was offered as to why you were unable to submit the documentation. The information and documentation not received includes a signed transport manager declaration (we received a signed operator licence application declaration), your transport manager CPC or evidence that you had requested a duplicate certificate, evidence of your CPC refresher training or agreement to an undertaking to complete refresher training and information about the future business relationship between Oakridge Agri Ltd and Oakridge Meats Ltd.
As a result of the lack of evidence relating to your transport manager refresher training or agreement to undertake further training, the application has also been refused under Section 12(5) as the Department cannot be satisfied that the applicant meets the professional competence requirement.
The address provided for the operating centre in the advert appears to be inaccurate. In addition, you have provided a map showing two parking locations but have only applied for and advertised one address. In view of this, the Department is not satisfied that application has been appropriately applied for and, as a result, the application has been refused under Section 10(1) of the 2010 Act.’
Grounds of appeal
We have noted that following receipt of the decision notice, Mr Burns forwarded email correspondence to the Department on 8 January 2021 in which he made reference to earlier email correspondence which he had forwarded to the Department on 25 November 2020. Mr Burns asserted that it was his view that the latter email correspondence answered the questions which had been raised by the Department in its earlier correspondence to him of 12 November 2020. On the basis of an assumption that the decision to reject the licence application had been based on the answers which he had given, Mr Burns questioned whether it was possible to for him to provide any further explanation of clarification thereby obviating the need to lodge a formal appeal. The Department do not appear to have responded to the email correspondence of 8 January 2021 which, in our view, was a failure to proactively engage with Mr Burns in an attempt to resolve outstanding issues. We return to that theme below.
In the notice of appeal, Mr Burns identified four grounds of appeal.
The first of these related to the statement made in the decision notice that there was no evidence relating to his transport manager refresher training or agreement with an undertaking to undertake refresher training. Mr Burns submitted that in email correspondence dated 25 November 2020 to the Department he had noted that since 2008 he had completed 10 modules, representing 80 hours, of CPC training. He stated that this had taken placed in industry appointed and accredited training institutes. He had added that he would no problem with accepting an undertaking to undergo transport manager refresher training.
The second ground of appeal related to the statement in the notice of appeal that he had not sent a signed transport manager declaration, his transport manager CPC or evidence that he had requested a duplicate certificate. Mr Burns submitted that in email correspondence dated 15 September 2020 and 13 October 2020 he had made reference to the efforts which he was making to obtain a duplicate certificate. He also noted it was clear that the Department did have sight of the CPC certificate as they had made reference to the date of issue in correspondence to him dated 12 November 2020 and, further, he was the nominated transport manager for Oakridge Meats Ltd. He stated that the duplicate certificate was now available and he had submitted a copy of it with his appeal documents.
The third ground of appeal related to the statement in the notice of appeal that he had not provided information about the future business relationship between Oakridge Agri Ltd and Oakridge Meats Ltd. Mr Burns pointed to email correspondence of 25 November 2020 in which he had addressed this point.
The fourth and final ground of appeal related to the address and arrangement of the proposed operating centre. He noted that the address which he had given in the application form was the same as that given in the advertisement. He provided a copy of his driving licence confirming that address, attached an annotated ordinance survey map and provided an explanation of the proposed parking spaces and vehicle access points. He added that in email correspondence to the Department dated 25 November 2020 he had indicated that further work had been undertaken on the site of the proposed operating centre since he had forwarded the aerial photographs to the Department.
Relevant legislative provisions
Sections 2(1)-(4), 12(2)-5), 12C, 12D and 12E of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010 (‘the 2010 Act’) provide:
“Standard” and “restricted” licences
An operator's licence may be either a standard licence or a restricted licence.
A standard licence is an operator's licence under which a goods vehicle may be used on a road for the carriage of goods—
for hire or reward, or
for or in connection with any trade or business carried on by the holder of the licence.
A restricted licence is an operator's licence under which a goods vehicle may be used on a road for the carriage of goods for or in connection with any trade or business carried on by the holder of the licence, other than that of carrying goods for hire or reward.
Notwithstanding subsections (2) and (3), a company may use a goods vehicle on a road for the carriage of goods for hire or reward under a restricted licence instead of a standard licence if (but only if) the goods concerned are the property of a company which is—
(a) a subsidiary of the first company,
a holding company for the first company, or
a subsidiary of a company which is a holding company both for that subsidiary and for the first company.
if the Department thinks fit, whether the requirement of section 12D is satisfied.
Determination of applications for operators’ licences
On an application for a restricted licence the Department must consider—
whether the requirements of sections 12B and 12C are satisfied; and
if the Department thinks fit, whether the requirement of section 12D is satisfied.
Subsections (1) and (2) are subject to sections 10 (publication of application) and 47(2) (payment of application fee).
In considering whether any of the requirements of sections 12A to 12D are satisfied, the Department must have regard to any objection duly made under section 11(1)(a) in respect of the application.
If the Department determines that any of the requirements that it has taken into consideration in accordance with subsection (1) or (2) are not satisfied, it must refuse the application.
12C Requirements for standard and restricted licences
The requirements of this section are that it must be possible (taking into account the Department's powers under section 14(3) to issue a licence in terms that differ from those applied for) to issue a licence in relation to which subsections (2) to (6) will apply.
There must be satisfactory arrangements for securing that the following are complied with in the case of vehicles used under the licence—
Article 56 of the Road Traffic (Northern Ireland) Order 1981 (drivers’ hours); and
the applicable Community rules, within the meaning of Article 2 of that Order.
There must be satisfactory arrangements for securing that vehicles used under the licence are not overloaded.
There must be satisfactory facilities and arrangements for maintaining the vehicles used under the licence in a fit and serviceable condition.
The licence must specify at least one place in Northern Ireland as an operating centre of the licence-holder, and each place so specified must be available and suitable for use as an operating centre of the licence-holder (disregarding any respect in which it may be unsuitable on environmental grounds).
The capacity of the place specified as an operating centre (if there is only one) or both or all of the places so specified taken together (if there is more than one) must be sufficient to provide an operating centre for all the vehicles used under the licence.
In considering whether the requirements of subsections (2) to (6) are satisfied, the Department may take into account any undertakings given by the applicant (or procured by the applicant to be given) for the purposes of the application, and may assume that those undertakings will be fulfilled.
In considering whether subsection (5) will apply in relation to a licence, the Department may take into account any conditions that could be attached to the licence under section 20(1)(a) (conditions of licences) and may assume that any conditions so attached will not be contravened.
In considering whether subsection (5) or (6) will apply in relation to a licence, the Department may take into account whether any proposed operating centre of the applicant would be used—
as an operating centre of the holders of other operators’ licences as well as an operating centre of the applicant; or
by the applicant or by other persons for purposes other than keeping vehicles used under the licence.
12D. Further requirement for standard and restricted licences
The requirement of this section is that the provision of the facilities and arrangements for maintaining the vehicles in a fit and serviceable condition is not prejudiced by reason of the applicant's having insufficient financial resources for that purpose.
General principles on the operation of the Act and Regulations
At paragraphs 10 to 13 of the decision in NT/2013/82 Arnold Transport & Sons Ltd v DOENI, the Upper Tribunal set out the following general principles in the operation of the legislative provisions in Great Britain and Northern Ireland:
‘Some General Principles
An operator’s licence can only be granted if the applicant satisfies the Department that the relevant requirements, set out in s. 12 of the 2010 Act as amended, have been met. [The expression Department is used in the legislation but for the purposes of the decisions required to be taken under the legislation it is the Head of the TRU who takes them]. The relevant requirements are now set out in Paragraph 17(5) of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012, (“the Qualifications Regulations), which substitutes a new s.12 and adds ss. 12A-12E to the 2010 Act. The Qualifications Regulations also contain important provisions in relation to Good Repute, Professional Competence and Transport Managers.
The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded. In our view it is clear both from the terms of the 2010 Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence. It is implicit in the terms of s. 23, which gives the Department power to revoke, suspend or curtail an operator’s licence, that this can take place at any time and for any reasonable cause, including matters covered by the requirements of s. 12 as amended. It is explicit in s. 24, which provides that a standard licence shall be revoked if at any time it appears that the licence-holder is no longer (i) of good repute, (ii) of appropriate financial standing or, (iii) professionally competent. The underlining, in each case is ours. First, we wish to stress that once it appears that the licence-holder is no longer of good repute, or of appropriate financial standing or professionally competent the licence must be revoked because the Act makes it clear that there is no room for any exercise of discretion. Second, the use of the expression ‘at any time’ makes the continuing nature of the obligations crystal clear.
The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation.
It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute. It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above). We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the Head of the TRU to assess the position on the facts of each individual case. However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.’
The proper approach on appeal to the Upper Tribunal
In NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI, the Upper Tribunal said the following, at paragraph 8 of its decision, on the proper approach on appeal to the Upper Tribunal:
‘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.’
At paragraph 4, the Upper Tribunal had stated:
‘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 oral hearing of the appeal
At the oral hearing of the appeal the Appellant limited company was represented by Mr Burns. He gave oral evidence which we found to be honest and credible
We were informed that Oakridge was the name of a townland in rural County Down and that many businesses used the name as part of their title. Oakridge Agri Ltd was a small business which bought and sold hay, straw and animal feed. He would also cut silage for others. The business owned about 100 acres of land. The purpose of the application was to increase that type of business and to import goods from England and the Republic of Ireland. His son was undertaking a course in agriculture and wanted to join his business when that is completed. His work was seasonal. He had a HGV licence and it made sense for him to have his own lorry. When his licence application was refused he had to sub-contract the work to other hauliers. He had not applied for another licence pending the appeal to the Upper Tribunal. A previous application had been refused but only because the date of the advertisement was a week late.
He had obtained his transport manager CPC in 2008. He was the nominated transport manager on the licence of Oakridge Meats Ltd. Despite the name of the company it was a general haulage business. Their licence specified seven vehicles but they were operating four across the island of Ireland and sometimes to England. They ran the transport business from a farm which was close to his home. He worked for Oakridge Meats ltd from Monday to Friday from 6.45 a.m. to 3.00 or 4.00 p.m. He repeated that if his own business is successful then he would think about leaving Oakridge Meats Ltd. He noted, however, that for the moment his own business was a ‘sideline’ to his work with Oakridge Meats Ltd and he would not be giving up that work in the near future.
He repeated that he had undertaken 10 modules of driver CPC training since 2008. He accepted that he had not undertaken transport manager CPC training but submitted that often the content of a driver CPC module was relevant to a transport manager. He would readily accept an undertaking to complete transport manager refresher training. He set out the difficulties which he had had in obtaining a copy of his CPC but noted that the Department were aware that he had one as he was the nominated transport manager for Oakridge Meats Ltd. He noted that there had been no regulatory action against Oakridge Meats Ltd. He accepted that, at times, his communication with the Department could have been better.
He gave the tribunal a detailed explanation of the site for the proposed operating centre and outlined the work which had been carried out to it. He referred to the annotated ordinance survey map. He would be happy for the Department to conduct an inspection of the site. He also gave us an explanation of the circumstances which led to the imposition of a fine in July 2018.
Mr Burns also made oral submissions which were parallel to the grounds of appeal as set out above.
Analysis
We are of the view that the general statements made in the notice of appeal about the failure on the part of Mr Burns to provide additional documentation, give an explanation as to why any missing documentation was not forthcoming and a lack of evidence of his attempts to comply with the requirements are somewhat misleading. Put simply, and having heard from and seen Mr Burns, we accept that he was doing his best.
He responded in a prompt manner to the correspondence which was sent to him and there are, in our view, examples where the explanations offered by him, both during the initial decision-making process, and on appeal, provide a complete and acceptable response to what was troubling the Department. The concerns about the site for the proposed operating centre are one such example. Similarly, the issue concerning the transport manager CPC and signed and dated transport manager declaration are easily resolvable. He was and is amenable to accepting an undertaking to take transport manager refresher training. His explanation of the relationship between Oakridge Agri Ltd and Oakridge Meats Ltd and the division of work between them is wholly satisfactory.
In the bundle of documents which is before us is a 14 page document described in the index as ‘Full submission as finalised 04JAN2021’. The document contains a series of internal Departmental memoranda which reflect various stages in the decision-making process. The document is headed as follows:
‘This is an OFFICIAL document and is not for disclosure to any third parties without the specific consent of the Department’
From this, it is clear that had Mr Burns not appealed against the decision to refuse the licence application the basis of the decision-making process would not have seen the light of day.
At page 7 of the document there is a reference to the application being considered at an ‘In Chambers’ hearing to be held at the same time as a parallel hearing in connection with the licence held by Oakridge Meats Ltd. There is further reference to the possibility of a hearing on page 8.
It is not clear why the hearing did not take place. It seems to us that had a hearing been arranged then the Department would have had, as we have, the opportunity to hear from and see Mr Burns. It is our view that had Mr Burns been as convincing in his oral evidence as he was before us, then the application would have been allowed. In that respect, we also note that at pages 11 and 12 of the internal document there is note by an officer that ‘I see no benefit in refusing the application …’
In these circumstances, the appeal is allowed.
We make the following Direction:
‘The decision of the Head of the TRU was that certain of the legislative provisions governing the requirements for the grant of a standard national goods vehicle operator's licence were not satisfied. For the reasons which we have set out above, we have determined that the decision was wrong and, inherent in that determination is an acceptance that the relevant legislative provisions were satisfied. We have not seen any evidence to suggest that the remaining legislative requirements for the grant of a licence are not satisfied, although it is not clear whether a signed and dated TM(NI)1 form was returned by Mr Burns and whether the Department has a copy of his transport manager CPC. We remit this case to the Head of the TRU himself to re-decide the licence application. We do so in the expectation that it will be granted. We would add, however, that it is our view that in addition to the usual standard national licence undertakings it would be appropriate there should be an undertaking to attend a transport manager specific CPC refresher course such as that suggested in the Department’s correspondence to Mr Burns dated 12 November 2020. Finally, we have noted that the refusal of the licence application has meant that the appellant's business has been reliant on third party hauliers at a cost to the company. Given that, we expect the re-determination of the application for the licence will be given priority.'
Kenneth Mullan, Judge of the Upper Tribunal,
28 June 2022
Corrected on 7 February 2023 – UT Case Ref. No. only