Paul Bamber

The Appellant (Mr Paul Bamber) appeals the decision of the Traffic Commissioner (‘TC’) dated 7 September 2021 varying his Public Service Vehicle operator’s licence under the Public Passenger Vehicles Act 1981 (‘the Act’).

In January 2021, as a result of moving house, the Appellant applied to change the operating centre for the licence to be his new residential address. Previously there were two operating centres authorised on the licence – his former residential address and the Whitby Sports and Social Club – because at that time the Appellant owned and operated two vehicles. He now operates using only one vehicle - a Mercedes Sprinter Minibus (with 6.9-metre-long wheelbase) for hire or reward. He provides a minibus service such as to drive clients and customers to and from sporting events and pick them up from Liverpool city centre.

The TC’s decision varying the operator’s licence was contained in a letter dated 7 September 2021. The letter referred to the Appellant’s application to vary the operator’s licence which was granted in modified terms as per the TC’s decision:

The amended licence was enclosed. It decreased the number of authorised operating centres to one, removing the Appellant’s former residential address and confirming the Whitby Sports and Social club as the only operating centre.

The TC’s decision followed an earlier internal memo dated 25 August 2021 from within the Office of the TC (‘OTC’) which stated:

The Appellant lodged a notice of appeal to the Upper Tribunal dated 5 October 2021.

His grounds of appeal were as follows:

The Appellant also provided numerous photographs of his parking area / driveway at the front of his house with the vehicle parked in situ together with photographs of his residential street, including aerial views. He also included a sketch plan with relative dimensions of his parking area / drive.

With the consent of the Appellant, the hearing was heard remotely through BT-meet-me telephone facility. We were satisfied it was just and fair - in accordance with the overriding objective - to proceed in this manner. The Appellant received a reasonable opportunity to make his representations in writing and orally before and during the hearing. The Appellant fully participated in the hearing by telephone. We are grateful to him for the clarity of his written and oral submissions.

Applications for the grant and variation of Public Service Vehicle (PSV) licences can be only granted by the TC if various conditions are satisfied. These include those under section 14ZC of the Act as follows:

Paragraph 17 of Schedule 4 to the Transport Act 1985 provides:

The Upper Tribunal are to have full jurisdiction to hear and determine all matters (whether of law or of fact) for the purpose of the exercise of any of their functions under an enactment relating to transport”.

On an appeal from any determination of a traffic commissioner other than an excluded determination, the Upper Tribunal is to have power-

to make such order as it thinks fit; or

to remit the matter to the traffic commissioner for rehearing and determination by the commissioner in any case where the tribunal considers it appropriate.

The Upper Tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal”.

The Upper Tribunal’s jurisdiction was examined by the Court of Appeal in Bradley Fold Travel Ltd and Anor v Secretary of State for Transport [2010] EWCA Civ 695. The court applied Subesh and ors v Secretary of State for the Home Department [2004] EWCA Civ 56, where Woolf LJ held:

“44….The first instance decision is taken to be correct until the contrary is shown…An Appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one…The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an Appellant assumes is to show that the case falls within this latter category.”

The Tribunal is not required to rehear all the evidence by conducting what would, in effect, be a new first instance hearing. Instead it has the duty to hear and determine matters of both fact and law on the basis of the material before the Traffic Commissioner but without having the benefit of seeing and hearing the witnesses.

The Appellant ‘assumes the burden’ of showing that the decision appealed from is ‘plainly wrong’ or at least ‘wrong’.

In order to succeed the Appellant must show not merely that there are grounds for preferring a different view but that there are objective grounds upon which the Tribunal ought to conclude that the different view is the right one. Put another way it is not enough that the Tribunal might prefer a different view; the Appellant must show that the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view.

That is the approach which we have followed in deciding this appeal.

We are satisfied that this appeal should be allowed because the TC’s decision only authorising the Whitby Sports and Social Centre as an operating centre on the Appellant’s licence was wrong.

We are satisfied that the TC failed to consider, address or give any or sufficient reasons for deciding that the Appellant’s new residential address was unsuitable or unsafe to be authorised as an operating centre. We also note that the TC does not appear to have conducted a site visit of the Appellant’s new address - his proposed operating centre.

Further, the reasoning that the TC did rely upon was wrong for the reasons that the Appellant relied upon during oral argument and set out in his grounds of appeal.

The reference to both vehicles by the TC in the reasoning was not valid and was incorrect - as the Appellant had made clear that he only had the one vehicle at the time of the decision and this was known at the time. The Applicant had sold the other vehicle in June 2021. The TC also stated that it was not impossible to park two vehicles at the Sports and Social Club. This was wrong – the letter from the Sports and Social Club which had previously been received by the TC clearly stated that only one vehicle could be parked there. The club gave the Appellant permission from 15/7/19 to park one minibus in the required space (the size 2 of normal car spaces) and the OTC had previously received a copy of that letter in the post.

The TC’s reasoning went on to suggest that the Social Club was the obvious choice for the operating centre but it was not the obvious choice. Contrary to the OTC’s reasoning it was not even an option as mentioned earlier - the Appellant had made clear he had given up his second vehicle and parking space at the club. Further, from the Appellant’s business perspective, it made more sense to have his vehicle parked at his own address rather than some distance away.

Most importantly, the Appellant was correct to submit that the TC had failed to address the suitability and safety of his new residential address to be authorised as an operating centre. This was the real and key issue to be decided by the TC which he failed to do adequately (or at all).

We are satisfied that the Appellant’s new residential address can safely be authorised as the operating centre on the licence. We are satisfied that it is a quiet residential street with low footfall and low volumes of traffic. We are satisfied that the risk of the Appellant endangering people, vehicles or property when reversing into his parking area / driveway can be safely managed. This is because a) the Appellant is an experienced professional driver with an impeccable safety record who is used to operating in busy city centres; b) there is a dash cam in the vehicle with a reverse camera so, when used together with the vehicle’s rear view mirrors and adequate inspection of the road and pavement, the Appellant will have good visibility when reversing; c) there is a wide entrance to the driveway to his home and the vehicle is 6.9 metres long (many long wheelbase vans are frequently reversed and parked on residential streets and driveways where they do not require licences as they are not carrying passengers for hire or reward); d) there is a low footfall of people and volume of traffic that the Appellant may expect to encounter when reversing at this address; e) there is sufficient room on the Appellant’s drive for daily checks to be performed of the vehicle. Therefore, it would be unnecessary and disproportionate for him to employ a banksman to reverse or to fit reversing bleepers to the vehicle or mirrors on his driveway.

Furthermore, there have been no objections from his neighbours to the Appellant’s application. We accept the Appellant’s evidence in his notice of appeal that all risks can be adequately and safely mitigated. We have also had due regard to the photographs and plan the Appellant provided.

We agree with all that is said by the Appellant that he was previously authorised to operate from his former residential address which presented a higher risk than his current residential address which is safer. We accept his submissions and evidence that the former address had two schools in close proximity – one within a hundred metres behind it and another 2-300 metres away. Therefore, traffic and footfall around that area was significant around peak times of the day – albeit the Appellant managed to operate without incident.

In contrast, we accept the Appellant’s submissions and evidence that the nearest school to his new property is a mile away and the property is on a middle road of three roads. His road is a small quietish road so that drivers use the two other roads when seeking a cut-through. We accept his submission that it is a quieter area than his previous address and are satisfied that the drive on his property is adequate for safety checks to be performed without issue or impact.

We accept the submission that the Social Club is no longer a realistic or sensible option for the Appellant to utilise as an operating centre – given its cost, distance from his house, lack of a second vehicle and its relative busyness. The Appellant has already given up his agreement to use that site. We also note, but have not taken into account, the Appellant’s suggestion that unless his current address is authorised as an operating centre, he may no longer be able to continue in business. Our primary concern is to ensure public and vehicular safety in the authorisation of operating centres.

We allow the appeal against the TC’s decision dated 7 September 2021 on the basis that it was wrong. For the reasons set out above we exercise our jurisdiction under Paragraph 17(2)(a) of Schedule 4 to the Transport Act 1985 to make such order as we see fit. Our order is to vary the Appellant’s operator’s licence to authorise only one operating centre, namely his current residential address 23 The Paddock, Great Sutton, Ellesmere Port, CH66 2NN (in substitution for the Whitby Sports & Social Club). This authorisation is to have effect retroactively from the date of the Appellant’s application to the TC for variation which was received on 10 February 2021.