Shaun Gallagher & Anor

This is an appeal to the Upper Tribunal brought by Mr Shaun Gallagher (“the Appellant”), on behalf of PG Haulage Limited (“the Appellant company”) against a decision of the Department for Infrastructure for Northern Ireland (“the DfI”), dated 20 May 2024. The decision was to refuse an application to vary the operator’s licence held by the Appellant company (reference ON2017993).

The appeal was considered at an oral hearing, at the Tribunal Hearing Centre within the Royal Courts of Justice, Belfast, on 19 September 2024. The Appellant was in attendance and was accompanied by Mr Martin Gallagher by way of support. He was unrepresented. The Respondent was not represented as is usual for this type of hearing.

The Appellant held an operating licence (reference ON2017993) which authorised one vehicle and had an operating centre at 26 Crossdall Road, Armagh, BT60 3QL. By letter dated 10 November 2023, the Appellant sought a variation of his operating licence to authorise a new operating centre at 215 Culmore Road, Londonderry BT48 8JL. It was also requested that the operating centre be authorised to hold four vehicles and one trailer which required an increase to the authorisation on the licence.

The Appellant followed this letter up with an application on the correct form, within which he indicated that he had permission from the site owner to use the premises as an operating centre and to park the requested number of vehicles and trailers. He had advertised the application in his local newspaper, the Derry Journal, on 12 December 2023. He purported to demonstrate financial standing to the value of £21,500 as required. He provided the registration details and plated weights of each of the vehicles proposed to be included on the licence. His application confirmed the standard undertakings in making the variation application.

On 15 January 2024, a Licensing Casework Officer from the DfI Central Licensing Office wrote to the Appellant to inform him that his application was incomplete in five regards. Firstly, the advertisement could not be accepted as it had not been published within the correct 21 day timescale of the application being made. Secondly, he had to supply financial evidence in the name of PG Haulage Limited to demonstrate the company had financial standing to the sum of £21,500. Thirdly, he was asked to account for six large deposits of money on two separate dates in December 2023, which were showing on the financial standing evidence he had already submitted. Fourthly, he was asked to account for the reason why a second company director was not declared on the application. Finally, he was asked to provide an aerial image of the proposed operating centre site to assist the DfI in establishing its suitability for use. He was asked to respond with this information by 29 January 2024 or risk his application being refused. The Appellant provided all the information requested within the time frame allocated.

The Driver and Vehicle Agency (“DVA”) thereafter received a request from the Transport Regulation Unit (“TRU”) on 26 February 2024, to assess the proposed site as had concerns regarding its suitability. The DVA proceeded to conduct an operating centre assessment, including attending the site on an unannounced visit on 20 March 2024. The yard owner, who was on site during the visit, stated that no contract had been signed between he and the Appellant to rent the site. The assessment concluded that the site was capable of accommodating the number and type of vehicles requested but there were other concerns identified.

On 20 May 2024, the Casework Manager of the DfI Central Licensing Office wrote to the Appellant, as director of the applicant company PG Haulage Limited, indicating that the application to vary the operator’s license had been refused under s.12(5) of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010 (“the Act”), as applied by s.16(6) of the Act, on two grounds:

It was further stated:

“Refusal of the application does not preclude the company from reapplying to use the same site. Evidence of availability and suitability of the surface at the time of application would be required. The Department would also need to be assured that there are allocated parking spaces for your company’s vehicles because it is a shared site, along with evidence that it is clear to other users of the premises that the allocated spaces are solely for your company’s use.

The letter set out the Appellant’s right to appeal to the Upper Tribunal. Instead of reapplying, the Appellant submitted an appeal to the Upper Tribunal to challenge the refusal decision.

The Appellant lodged an appeal, against the decision of the DfI, with the Upper Tribunal on form UT12NI, which was signed and dated 28 May 2024. The Appellant cited the following grounds of appeal [spelling corrected]:

“In response to the 1st point, we are prepared to carry out some ground works to have hard standing from our designated parking spaces to the gateway, but as this is a rented property, we would not be doing those groundworks on the basis of the costs involved if the premises was still deemed unsuitable or if the extension to the licence was refused on other grounds.

In response to the 2^nd point, while no formal agreement is in place at the moment, we do have a verbal agreement that if our application is successful, we will be given a formal agreement for the use of the premises. Again, in order to have a formal agreement at present would mean paying rent on a premises that a. we are not using yet and b. might not be deemed suitable for the licence.”

As to the approach which the Upper Tribunal must take on an appeal such as this, it was said, in the case of Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI [2013] UKUT 618 AAC, NT/2013/52 & 53, at paragraph 8:

“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 or 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 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 task of the Upper Tribunal, therefore, when considering an appeal from a decision of the DfI in Northern Ireland, is to review the information which was before the Department along with its decision based on that information. The Upper Tribunal will only allow an appeal if the appellant has shown that “the process of reasoning and the application of the relevant law require the tribunal to take a different view” (Bradley Fold Travel Limited and Peter Wright v. Secretary of State for Transport [2010] EWCA Civ 695, [2011] R.T.R. 13, at paragraphs 30-40).  In essence therefore the approach of the Upper Tribunal is as stated by Lord Shaw of Dunfermline in Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 36-37, that an appellate court should only intervene if it is satisfied that the judge (in this case, the decision of the DfI) was “plainly wrong”.

As set out in paragraph 7 above, the DfI refused the Appellant’s application to vary his company’s operator’s licence under s.12(5) of the Act, as applied by s.16(6). Sections 12 and 16 of the Act state, as far as is relevant to this case:

“Determination of applications for operators' licences

12—(1) On an application for a standard licence the Department must consider—

whether the requirements of sections 12A and 12C are satisfied; and

Section 12C sets out the requirements for a standard and restricted licence, of which s.12C(5) is particularly relevant to this case:

The Appellant had applied to vary the operating centre named on the operator’s licence, and had applied to increase the vehicle authorisation (see s.16(1)(a) and (g)). While no mention was made of the outcome of the request to increase authorisation, the DfI refused the application to vary the operating centre on the basis that it was deemed both unsuitable and unavailable (see the detailed reasons outlined at paragraph 7 above which triggers both elements of s.12C(5)).

In the letter stating that the application had been refused, the DfI advised the Appellant that he could re-apply and explained, in basic terms, what the was needed to do so. The letter also set out his right of appeal. It was open to the Appellant to either re-apply or to appeal to the Upper Tribunal. He chose the latter.

At the appeal hearing, the Appellant explained that he had a business in the Republic of Ireland with a number of vehicles and an office from which to manage the operation. He sought to undertake work in mainland UK hence he decided to increase the authorisation on his licence and to locate a more convenient operating centre which would also house the additional vehicles. After the DfI had refused his variation application, the Appellant was unsure whether to renew it, but he had subsequently formed the view that his original decision to vary his operating centre was the correct one. It was highlighted by the panel at the hearing that the DfI had indicated what was required from him to pursue the application. It was explained that the Upper Tribunal were not in a position to grant or refuse the variation application but rather to determine whether the DfI’s decision to refuse the application was, in the circumstances, “plainly wrong”.

It is an agreed fact that the ground surface within the proposed operating centre site needed to have work done to avoid a safety issue by the HGV vehicles bringing mud and debris onto the public road when moving onto and off the site. The Appellant expressed his desire, at the hearing as well as on the appeal form, to have this safety issue corrected but felt he could not do the required ground works as he was not the owner of the site. Additionally, without the prior approval of his application by the DfI, it was potentially a waste of time and money.

Equally, it is an agreed fact that the Appellant does not have a formal agreement in place with the site owner that he may rent the site for the purposes of an operating centre. He explained at the hearing that he had verbally agreed use of the site with the owner. However, the DfI could not be assured of the availability of the site without something in writing from the owner, hence it could not, in law, approve the application (see s.12C(5)). While the DfI had acknowledged that the Appellant need not have signed a formal agreement in place in advance of approval of the site, the Appellant

We find that the DfI was not “plainly wrong” in refusing the variation application. The Appellant had not satisfied the DfI that the proposed operating centre site was suitable or available as required under s.12C(5). However, by simply refusing the application, the Appellant was left with a lack of understanding of how to satisfy the requirements when he was not the owner of the site. Instead of creating this stalemate situation, it was within the powers of the DfI to, for example, make an interim grant of the application on the conditions that the surface of the site was made safe, that parking spaces were allocated for the proposed vehicles, and that a written agreement was put in place between the site owner and the Appellant to confirm it was available for his use (see ss.12(7) and (8) of the Act which permits such a course of action). This would have better informed the Appellant, who has clearly been keen to comply, on how to meet the regulatory requirements for the variation of operating centre, while also providing the DfI with some assurance that if the conditions were not met, the application could still ultimately be refused. Such a course of action would have facilitated better cooperation and communication between the Appellant and the DfI to put the variation in place. It would have also avoided the delay that has been caused by the appeal process, which was a legitimate course of action for the Appellant to take.

It is only fair to say that we would have responded differently in the circumstances of this application, but that is not the test to be applied on appeal. The refusal of the application was within the remit of options available to the DfI and we cannot therefore say that it was plainly wrong. For these reasons, the appeal is dismissed.