Appeal No. UA-2025-000427-T
TRAFFIC COMMISSIONER APPEALS
ON APPEAL from the DECISION of the TRAFFIC COMMISSIONER for the WEST MIDLANDS dated 31st March 2025
Before: HHJ Beech, Judge of the Upper Tribunal
David Rawsthorn, Specialist Member of the Tribunal
Richard Fry, Specialist Member of the Tribunal
Appellant: ROLY POLY LIMITED
Commissioner’s ref: OD1137195
Mode of hearing: Remote by CVP
Heard at: Field House, Breams Buildings, London, EC4A 1DZ
Representation:
Appellant: Mr Lusted, director
Decision Date: 13th October 2025
SUMMARY OF DECISION
This appeal is ALLOWED
The Traffic Commissioner’s decision to refuse the Appellant’s application to vary its restricted operator’s licence upon the basis that its advertisement was outside the 42 day window for advertising the variation was procedurally unfair. The application must be remitted for further consideration.
KEYWORD NAME: 100.1 Applications
Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.
DECISION
The appeal is allowed and the matter is remitted for further consideration
REASONS FOR DECISION
Introduction
This is an appeal from the decision of the Traffic Commissioner for the West Midlands (“the TC”) dated 31st March 2025, when he refused the Appellant’s application to vary its restricted operator’s licence under ss.18 and 19 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).
Factual background
The background to this appeal is as follows. On 30th January 2025, the Appellant (“the company”) uploaded onto the VOL system an application to vary its restricted operator’s licence by increasing its vehicle authorisation from three vehicles to five vehicles and one trailer and by varying the location of its operating centre from Breach Farm, Egdon Lane, Worcester to Upper Haselor Farm, Hinton-on-the-Green, Evesham. Attached to the application was the full edition of the Pershore Times (all thirty-one pages) dated February 2025. Unfortunately, Mr Lusted made an obvious mistake in the application by stating that the advertisement had been placed in the newspaper on 28th February 2025.
By a letter dated 10th February 2025, the Office of the Traffic Commissioner (“OTC”), informed the company that its application was incomplete in two respects. Confirmation was required that the proposed operating centre could receive correspondence and the second was worded as follows:
Please be advised that as you have advertised in a monthly newspaper your variation application will require a submission to the Traffic Commissioner for Consideration.
The company was warned that failure to provide all of the information requested by 24th February 2025 may result in the application being refused. What the company should have been asked was for clarification of the date when the advertisement was placed in the newspaper before referring the application to the TC.
On 10th February 2025, Mr Lusted confirmed that the company’s correspondence address would not change. Moreover, Mr Lusted incorrectly volunteered that with regard to the advertisement, he had previously used the same newspaper for the company’s last application and that “it was fine”. In fact he had used the Worcester News on two previous occasions.
On 10th March 2025, Mr Lusted uploaded a message onto VOL complaining about the delay in considering the application and that an interim licence had not been granted.
On 11th March 2025, submissions were made to the TC. The first recommended that as the only issue had been that the advertisement was in a monthly newspaper, that the application be granted as applied for but that the company should be advised that in future it should not advertise in a monthly newspaper as it may not be accepted by the TC. The second submission recommended refusal of the application as the newspaper was monthly and appeared to be used for local advertisements only and did not show any other public notices. However, in view of the delay in referring the application to the TC, the company should be offered a fee waiver if a new application was submitted within fourteen days.
On 12th March 2025, the TC refused the application for different reasons. He was satisfied that the newspaper was sufficient as it was predominantly a newspaper and there was no difficulty in it being a monthly publication . The difficulty was that it simply stated the date of publication as “February 2025” which might have meant that it was published at the beginning of January which would have been outside the 42 day window stipulated by s.19 of the Act and it was noted that Mr Lusted had stated that it was published on 28th February 2025 which would also have been out of time. It was for the company to establish when the advertisement was published. However, in view of the delay in referring the application to the TC, the OTC should waive the application fee were a further application to be made which was fully compliant with s.19 of the Act.
The refusal letter was dated 31st March 2025 (there is nothing in the appeal file which might explain this delay). The company chose not to re-apply but rather appealed.
Legal framework
By s.18 of the 1995 Act, a Traffic Commissioner must refuse an application to vary an operator’s licence if the advertisement required does not comply with s.19(3) of the Act, in that it must be published within the period beginning 21 days before the date on which the application is made and ending 21 days after that date.
The grounds of appeal and the Appellant’s submissions
The grounds of appeal complain that the OTC should have asked Mr Lusted for further evidence as to when the advertisement was published rather than simply referring the application to the TC and for it then to be refused.
Analysis
It is fortunate for Mr Lusted that during our discussions prior to the Tribunal hearing commencing, we had identified the failure of the OTC to make any attempt to clarify the date upon which the advertisement was published, bearing in mind that the answer to the question “Date advertisement was placed (our emphasis) was “28th February 2025”. That was clearly wrong. We say “fortunate” because it transpired that Mr Lusted was in Spain on the day of the hearing and did not think to ask for an adjournment or inform the Tribunal in good time that he would like to join the hearing by telephone from abroad. Urgent consideration had to be given to the provisions of the Upper Tribunal (Administrative Appeals Chamber) Guidance Note – Oral Evidence from Abroad. Having been satisfied that we would not be taking evidence but rather, hearing submissions, we gave him permission to do so. However, rather than follow the CVP guidelines which advise that parties to CVP hearings should be in a room where they cannot be overheard, Mr Lusted was sitting in a busy bar in a square in Barcelona, drinking. His manner and conduct and the way he addressed the Tribunal were highly disrespectful and rude. The hearing was short-lived. If we had not identified the short-comings in the decision making process in this case prior to the hearing, we would have adjourned the hearing and required Mr Lusted to attend a face to face hearing in London in order to present his appeal.
Conclusion
In the event, we are satisfied that it was procedurally unfair to proceed to a determination without any attempt to clarify the publication date of the advertisement and that as a result, the Tribunal must allow this appeal as per the test in Bradley Fold Travel & Peter Wright v Secretary of State for Transport (2010) EWCA Civ.695. The appeal is allowed. The application is to be remitted to the OTC for further consideration.
Her Honour Judge Beech
Judge of the Upper Tribunal
Authorised by the Judge for issue on 13th October 2025