Deborah Marie Toner T/A DDT Haulage v Head of the Transport Regulation Unit

Background

The Appellant is the holder of a standard international goods vehicle operator’s licence authorising 4 vehicles and 10 trailers.

On 9 August 2022 an application to add a Transport Manager to the licence was received in the Department.

On 14 September 2022 the Department wrote to the appellant asking for an explanation concerning two infringements detected on a vehicle on 29 June 2022, how they had happened, what action had been taken to prevent a recurrence and why the Appellant had failed to notify the Department within the 28 day guideline.

On 15 November 2022 the Department made a decision to refuse the application to add a Transport Manager to the application.

An appeal against the revocation decision was subsequently received in the office of the Administrative Appeals Chamber (AAC) of the Upper Tribunal.

“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”

have an effective and stable establishment in a Member State;

be of good repute;

have appropriate financial standing; and

have the requisite professional competence.

Member States may decide to impose additional requirements, which shall be proportionate and non-discriminatory, to be satisfied by undertakings in order to engage in the occupation of road transport operator.

Article 5

In order to satisfy the requirement laid down in Article 3(1)(a), an undertaking shall, in the Member State concerned:

…

once an authorisation is granted, have at its disposal one or more vehicles which are registered or otherwise put into circulation in conformity with the legislation of that Member State, whether those vehicles are wholly owned or, for example, held under a hire-purchase agreement or a hire or leasing contract;

‘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.’

‘The request has been refused by the Head of the Transport Regulation Unit and the reasons are set out below:

The Administrative Appeals Chamber of the Upper Tribunal has today, 15 November 2022, issued case management direction for the Department to expedite the determination of the extant application to add a Transport Manager to the licence.

I have taken the opportunity today to review this case and note that a TM(Nl)1 form was submitted by the operator, dated 10 July 2022, and received by the Department on 09 August 2022. This was a request to add Mrs Deborah Marie Toner as an Internal Transport Manager.

Subsequent to the receipt of this nomination, the Department received notice from the Driver and Vehicle Standards Agency (GB) of two Most Serious Infringements allegedly incurred by this operator at an encounter dated 29 June 2022. In line with standard procedure, the Department wrote to the operator (by way of letter dated 14 September 2022) seeking an explanation for these MSls, with a response to be received on or before 03 October 2022. As no response has been received the caseworker had not yet escalated the nomination for a final determination.

On receipt of the aforementioned case management direction I have taken the opportunity to now review this nomination in order to make a determination.

I reference the communications relating to the MSIs to give context to the apparent delay in dealing with the nomination. Without giving any further consideration to those alleged MSIs, or the apparent failure of the operator to respond by the set deadline, I note simply that this nomination is to add Mrs Deborah Marie Toner as an Internal Transport Manager. This is at odds with the undertaking previously set by the Upper Tribunal, by way of a consent order, that

The emphasis on external here is my own. The nomination is contrary to the established undertaking. Consequently, the nominated transport manager is prohibited for being designated as transport manager therefore failing to satisfy the requirement of Section 12A(3)(c) of the 2010 Act.

The request to nominate Mrs Deborah Marie Toner as Transport Manager is therefore refused.’