Interbev Ireland Ltd v The Head of the Transport Regulation Unit

Background

The Appellant is the holder of a restricted goods vehicle operator’s licence granted on 2 June 2014 and authorising 1 vehicle and 1 trailer.

An application for a variation to the licence was received in the Department in November 2021. The variation application sought authorisation for 3 vehicles and 2 trailers.

In correspondence dated 22 November 2011 the Department informed the Appellant that it considered that the application and requested additional documentation, as follows:

In the file of papers which is before us is a copy of a page from a local newspaper which contains a copy of an advertisement relating to the Appellant’s application. We return to this document below.

In correspondence dated 15 December 2021 the Department wrote to the Appellant again. In this correspondence the Department indicated that certain documentation remained outstanding. It also stated that the purpose of the correspondence was ‘ …intended as a final attempt to resolve these issues by correspondence and you must now respond in full by no later than 29/12/2021. If on that date the application remains incomplete, it will be refused. Should this happen, you will have to re-apply for a licence and meet again the application fee plus the cost of placing a fresh advertisement.’ The requested supporting documentation was as follows:

The Department then forwarded three items of correspondence to the Appellant. The first was dated 12 January 2022 and the other two 28 February 2022. Each of these letters referred to the refusal of the Appellant’s application. We return to the specificity of the three items of correspondence below.

An appeal against the refusal of the variation application was subsequently received in the office of the Administrative Appeals Chamber (AAC) of the Upper Tribunal.

‘I am appealing this decision as I feel I have returned all requested information in the time given. I have included letters and photographs to support this. I took the wording of the advertisement directly from the guidance notes supplied and sent picture [uploaded it onto system] Same week it was published in local paper - see date on paper for reference. Upon uploading the advert we received another request for aerial pictures in which I obtained and subsequently uploaded. All info attached.’

“Standard” and “restricted” licences

On an application for a restricted licence the Department must consider—

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.

any direction under section 16(1)(a) that a maximum number specified in a licence under section 5 be increased;

any direction under section 16(1)(c) or (e);

any direction under section 16(1)(g) that a new place be specified in a licence as an operating centre of the licence-holder; and

any direction under section 16(1)(h) or (i) which might result in a material change in the use of any operating centre of the licence-holder.

This subsection has been complied with in respect of a locality affected by an application if, within the period beginning 21 days before the date on which the application is made and ending 21 days after that date, notice of the application in such form and containing such information as may be prescribed has been published in one or more local newspapers circulating in the locality.

it is satisfied as mentioned in subsection (1), except that the form or contents of the notice of application as published in any newspaper did not comply with the prescribed requirements; and

it is satisfied that no person's interests are likely to have been prejudiced by the failure to comply with those requirements.

For the purposes of this section a locality is affected by an application for the variation of an operator's licence if—

‘1.The information to be given in the notice of application is—

Every notice shall contain the following wording—

“Owners or occupiers of land (including buildings) near the operating centre(s) who believe that their use or enjoyment of that land would be affected, should make written representations to the Department stating their reasons, within 21 days of this notice. Representors must at the same time send a copy of their representations to the applicant at the address given at the top of this notice. A Guide to making representations is available from the Department”

‘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.’

‘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.’

‘I refer to your application to vary your operator's licence and to our recent letter warning of the consequences should you fail to provide proof that you have placed a valid newspaper advertisement as required under Section 17(3) of the above Act.

The stated deadline for submitting proof in the form of the full page of the newspaper containing the advertisement has now expired. The adverts published were out of the prescribed time period, your application has been refused under Section 17(1) of the Act.’

‘I refer to the recent decision by the DHTRU to refuse your application.

In decision [sic] he has directed that a future application should be subject to a site assessment by the OVA. The rationale being that articulated vehicles would be unable to tum around within the confines of the centre and will have to reverse in.’

‘I refer to your application for an operator's licence and to our letter of 12 January 2022 stating that the application had been refused due to the timing of the advert.

The application was refused under Section 17(1) of the 2010 Act because the content of the advert did not contain all mandatory wording as set out below and I am sorry for any inconvenience caused.

The advert should contain the following wording:

Owners or occupiers of land (including buildings) near the operating centre(s) who believe that their use or enjoyment of that land would be affected should make written representations to the Dfl at Central Licensing Office, PO Box 180, Leeds, LS9 1 BU stating their reasons within 21 days of this notice. Representors must at the same time send a copy of their representations to the applicant at the address given at the top of this notice. A Guide to Making Representations is available from the website infrastructure-ni.gov.uk

The wording in bold was omitted from the advert. That wording is mandatory, which means the Department has no discretion to accept an advert without it’.