Neutral Citation Number: [2010] UKUT 54 (AAC)

Appeal No.  2009/518
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of
Richard Turfitt Traffic Commissioner for the 
Eastern Traffic Area Dated 5 November 2009

Before:
Hugh Carlisle QC	Judge of the Upper Tribunal
Leslie Milliken		Member of the Upper Tribunal
Stuart James		Member of the Upper Tribunal

Appellant:
ROSE AND SONS LIMITED

	 
Attendances:
For the Appellant: Richard Gregory, director 

Heard at:	Victory House, 30-34 Kingsway, London, WC2B 6EX
Date of hearing:	4 February 2010
Date of decision:	16 February 2010

DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be DISMISSED and that the termination of the licence take effect at 2359 hours on 4 April 2010.

REASONS FOR DECISION

1.	This was an appeal from the decision of the Traffic Commissioner for the Eastern Traffic Area on 5 November 2009 when he refused to find exceptional circumstances under s.45(5) of the Goods Vehicles (Licensing of Operators) Act 1995 so as to disregard the termination of the licence by non-payment of the renewal fee.

2.	The factual background appears from the documents and is as follows:
(i)	The Appellant Company was the holder of an operator’s licence authorising three vehicles with one in possession.  The Company elected to pay its licence fee on a five-yearly basis and on 2 June 2009 a renewal notice was sent to its operating centre at Low Cross House, Padholme Road East, Peterborough.  The notice indicated that no further reminder would be sent and that the licence would terminate on 31 July 2009 unless the fee of £407 had been paid. 
(ii)	No fee was received and on 18 August 2009 the Traffic Area Office wrote to inform the Company that its licence had terminated.  The Company replied on 26 August that the renewal notice had not been received.  The Company had changed ownership in 2006 and had notified its change of address to premises at 11 Windmill Street, Whittlesey.  (A copy of this letter dated 10 May 2006 was subsequently provided but had not been received by the Traffic Area Office).  Although the operating centre continued to be at the Peterborough address there had been a postal strike in that area “for the past few weeks”.  The Company applied to the Traffic Commissioner to reconsider the termination but on 5 November he refused to disregard it.  
(iii)	Subsequently the Company applied for a stay and the Traffic Commissioner granted this on 1 December 2009.  In a detailed statement of reasons he questioned his jurisdiction and invited the Tribunal to express a view.
(iv)	In its notice of appeal the Company accepted that its procedures had failed but asserted that an “innocent oversight [had] occurred”.  

3.	Mr Gregory told us that there had been an industrial dispute in the Peterborough Sorting Office which had affected three postal districts including that containing the operating centre; this dispute had preceded the national strike.  If the renewal notice had been delivered to the Peterborough address he was sure that the occupiers (Rose Plant Hire) would have passed the notice on since the Company had been informed immediately when the letter of 26 August 2009 had been received.  He submitted that in view of the notification of change of ownership and of address in 2006 there were exceptional circumstances.  However, he accepted that there had been “an internal control lapse” in that the need for renewal had not properly been diarised.  

4.	We can sympathise with the Company’s position because most of us have failed to renew a licence of some sort at some time, since the need to renew licences is an everyday requirement of regulation.  But it is also implicit that no provision is made for reminders, with the burden of renewal being placed on the individual.  Postal delays can and do happen and we are satisfied that there are no exceptional circumstances in this case.  The Traffic Commissioner was correct in his decision not to disregard the termination and the appeal is dismissed.  Since a stay was granted the licence has remained in being pending resolution of this appeal.  Accordingly, the termination will not take place until 2359 hours on 4 April 2010 to enable an application for a new (and an interim) licence to be made.

5.	The Traffic Commissioner has sought guidance on the approach to be adopted in this type of case.  The history is that to the knowledge of the legal chairman the issue of jurisdiction was first raised in 1998 K35 Derek Bertram.  The Appellant had failed to post his renewal cheque in time and the Traffic Commissioner had refused to find exceptional circumstances so as to disregard the termination.  The Appellant then took a point on the wording of s.45 of the Act and this was the issue raised on appeal.  The Legal Directorate of the Department of Transport sent in a written submission the effect of which was to make the Appellant’s argument unsustainable, as his solicitor accepted.  No submissions were made on the issue of exceptional circumstances and the appeal was dismissed.  But the Traffic Area Office had accepted a payment for the whole of the current year “so as to preserve the status quo until the hearing of the appeal” and the Tribunal not only commended the approach but directed that the termination should be delayed for a further two months.

6.	It was implicit in the approach by both the [then Senior] Traffic Commissioner and the Department that an appeal lies to the Tribunal in non-payment of fees cases and that stays should be granted where appropriate.  This approach is the more necessary with the emphasis since given to human rights and we think that a purposive construction must be given to the relevant legislation.

Hugh Carlisle QC
Judge of the Upper Tribunal
 16 February 2010