Neutral Citation Number: [2013] UKUT 0385 (AAC)		Appeal No.  T/2013/20

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF MRS J AITKEN
TRAFFIC COMMISSIONER for the SCOTTISH TRAFFIC AREA 
Dated: 7 November 2012

Before:
Judge A Gamble, Judge of the Upper Tribunal, 
G Inch, Member of the Upper Tribunal, 
M Farmer, Member of the Upper Tribunal

Appellant:	
N S C Design Limited

Attendances:     
For the Appellant: The Appellant Company was not represented

Heard at:	George House, Edinburgh
Date of hearing:	16 July 2013
Date of decision:	5 August 2013

DECISION OF THE UPPER TRIBUNAL

The appeal be DISMISSED

The decision of the Traffic Commissioner is confirmed

SUBJECT MATTER:-  	

Provision of relevant information by applicant for a public service vehicle operator’s licence.

Cases referred to:	 None

REASONS FOR DECISION

1.	This is an appeal by N S C Design Limited, the company, against the decision of the Traffic Commissioner for the Scottish Traffic Area dated 7 November 2012 (intimated to the company on 8 November 2012) refusing their application for a restricted public service vehicle operator’s licence on the ground that they had failed to meet the requirements of section 14 of the Public Passenger Vehicles Act 1981.  

2.	The Traffic Commissioner took the above decision without convening a public inquiry under the provisions of regulation 6 of the Public Service Vehicles (Operators’ Licences) Regulations 1995. 

3.	Mr N Cole is, along with his wife, one of the two directors of the company.  He has acted for the company throughout the application process and these proceedings.  He did not attend the hearing.  By a letter dated 5 July 2013 he had intimated in advance that he was not going to attend due to other engagements.  No-one else represented the company at the hearing.  Mr Cole had not requested an adjournment.  In these circumstances we proceeded to determine the appeal in his absence.  We had sufficient documentation on file to do so. 

4.	The material circumstances relating to the appeal are narrated in paragraphs 5 – 12 below.  

5.	Mr Cole applied for a restricted public service vehicle operator’s licence on behalf of the company on 10 April 2009.  He did so by submitting a completed application form to the Traffic Commissioner’s Office.   His application was not presented as a request for advice or information from the Traffic Commissioner’s Office regarding “a proposed business model”, as Mr Cole suggests in his letter of 5 July 2013.  Nor was it presented as a provisional or preliminary application.  In a letter attached to the completed application form Mr Cole explained that the company intended to operate a fifteen seater mini bus for hill walking expeditions.  In that letter he also stated that he ran a voluntary group carrying out similar activities using a nine seater vehicle on a non-profit and non-commercial basis.  

6.	On 2 May 2009 the Traffic Commissioner’s Office wrote to the company requiring production of additional information and documentation specified in an annexe to that letter by no later than 16 May 2009.  That annexe read as follows:

“SUPPORTING  DOCUMENTATION  REQUIRED

	a letter from the owner of your nominated operating centre(s) confirming you have permission to use these premises for use as such.  This letter must detail the date on which it takes effect; and how many parking spaces are available for your use. 

financial evidence to demonstrate you have ready access to sufficient resources to  support your application.  The type and size of licence applied for requires a sum of £3100 to have been available during the three months immediately preceding submission of your application.

Please provide 3 months original bank statements for the months of January, February and March 2009.

	please read the enclosed finance guidance note for further information;

	a written maintenance contract to cover vehicles to be operated on your licence.  This must specify the periods (max 10 weeks) between safety inspections and be signed by both you and the contractor.

Please complete the enclosed pass 12 on behalf of the Ltd Company

Please confirm in writing how you intend to use the licence should it be granted

The original certificates of initial fitness for nominated vehicles”

Thus all of the information and documentation specified in the annexe was required to be produced by the company by 16 May 2009.  None of  it was produced by that date.  

7.	Rather by a letter dated 16 May 2009 Mr Cole, on behalf of the company, stated that he wanted “a dialogue” with the Traffic Commissioner’s Office and went on to cast doubt in strong terms on the relevance (as he saw it) of the information and documentation required by them as follows:

	“In particular I wished a dialogue as there are significant anomalies and some illogical requirements in the regulations that are not adequately explained.

	My letter and the form both explain the position with regard to what you grandiosely call my operating centre, or do you expect me to write a letter to myself given me permission to use my premises for my vehicles?

	What is the relevance of the financial requirement, which bear absolutely no relation to anything?  I already have AMPLE resources to  carry out my proposed activities, which are NOT providing a public service.  The form you sent conveys NEW requirements not previously documented.

	The proposed vehicle is NEW.  Contracts are entirely irrelevant since ALL maintenance HAS to be carried out by the dealer chain.  However, there is NO requirements to have ANY specific dealer.  In view of what I propose to do the presence of a maintainer who may be many hundreds of miles away is irrelevant and unhelpful.  The vehicle is a standard mass produced production line vehicle built to pre-approved type approval standards.  The vehicle is not likely to do more than 100 miles per week.  Being new there is NO financial or maintenance gain to pay anyone to inspect a vehicle every 1000 miles.  Can someone read my letter and explain the practical and real purpose behind this requirement and how it relates to real life.  Also could they explain why they burden the country with a raft of significant and unnecessary disproportionate bureaucratic red-tape which Ministers are trying to stop?

	What is a pass 12, which was not enclosed?

	My letter EXPLAINS IN DETAIL what I am intending to do.

	
	What is a certificate of initial fitness?  Or aren’t vehicles already approved for use on the road, and where does this come from?  What is its purpose? And since the vehicle is new I do not have any details as yet.  And we are not advised to order vehicles (so couldn’t give you any information anyway) until you grant a licence. 

	It is clear that whoever drafted these regulations that we being imposed lives in world of their own and fails to understand that we are not all Brian Souters operating a Stagecoach.  That person clearly doesn’t understand the motor industry either or fails to acknowledge vehicles that come off of a production line and are not customised coach built.”

8.	On 26 August 2011, a member of the Traffic Commissioner’s staff carrying out an audit ascertained that the applicant company’s application had not been decided.  She therefore telephoned Mr Cole.  The written record of that telephone conversation on file indicates that at that date he was continuing to assert the irrelevance, as he considered it to be, of the requirements imposed upon the applicant company by the Traffic Commissioner’s Office especially that relating to financial standing.  The staff member concerned in that conversation informed Mr Cole that she would refer the application to the Traffic Commissioner for a decision. 

9.	The staff member concerned referred the application to the Traffic Commissioner  on 31 August 2011.  In her submission to the Traffic  Commissioner she recorded matters as follows in respect of the applicant company’s financial standing:

	“FINANCIAL STANDING/HISTORY
	The amount required to be shown on this application was at the time of the application and is currently £3100.

	The operator has provided bank statements in the limited company name for the period 30/10/08 – 13/1/09 which is 2 weeks short of 3 months – the average for the period provided is £1,964.”

10.	On 30 September 2011 the Traffic Commissioner’s Office wrote to Mr Cole, explaining in detail the statutory regulatory regime applicable to public service vehicle operator’s licences under the Public Passenger Vehicles Act 1981 and hence the relevance of the information and documentation which had been required from the company on 2 May 2009.

11.	No response has been received by the Traffic Commissioner’s Office to the letter of 30 September 2011 described above.  We accept that Mr Cole wrote to the Traffic Commissioner’s Office on 17 January 2013 and 16 February 2013 but this was after she had made her decision on 7 November 2012.

12.	By 7 November 2012 the last contact with the company had been the telephone conversation with Mr Cole described in paragraph 8 above.  No correspondence had been received from him since his letter dated 16 May 2009 quoted in paragraph 7 above.  In these circumstances, the Traffic Commissioner on 7 November 2012 took the decision under appeal without convening a public inquiry.  
13.	The relevant statutory provisions are as follows:

	(a)	Section 14(2) of Public Passenger Vehicles Act 1981:

14 – (2)	On an application for a restricted licence a Traffic Commissioner must consider whether the requirements of sections 14ZB and 14ZC are satisfied.

	(b)	Section 14ZB of the above Act:

		The requirement of this section is that the Traffic Commissioner is satisfied that the applicant –

	(b)	has appropriate financial standing (as determined in 	accordance with paragraph 2 of schedule 3).

(c)	14ZC of the above Act:

1.	The requirement of this section is that the Traffic Commissioner is satisfied –

	(a)	That there will be adequate facilities or arrangements for maintaining in a fit and serviceable condition the vehicles proposed to be used under the licence; and 

	(b)	That there will be adequate arrangements for securing compliance with the requirements of the law relating to the driving and operation of those vehicles.

(d)	Regulation 6 of the Public Service Vehicles (Operator’s Licences) Regulations 1995:

	A Traffic Commissioner shall not refuse an application for a licence, or grant it other than is requested, without giving to the applicant an opportunity to state his case at an inquiry save where the application or the applicant’s conduct in relation to it is frivolous or unreasonable.  

14.	Having regard to the circumstances of this appeal laid out in detail in paragraph 5 – 12 above and to the relevant statutory provisions which we have laid out in paragraph 13 above we are satisfied that the Traffic Commissioner’s decision under appeal was clearly correct.  We thus dismiss the appeal and confirm that decision.  It was the statutory duty of the Traffic Commissioner to be satisfied that all of the matters referred to in section 14ZB and section 14ZC applied to the company.  That duty was imposed upon her by the express terms of section 14(2).   She could not fulfil it unless appropriate information and documentation was supplied to her by the company.  She required production of that information and documentation by 16 May 2009.  It was never provided.  We consider that the only reasonable reading of the circumstances relating to the company’s application is that Mr Cole, for whatever reason, refuses to accept that the statutory regime applicable in respect of an application for a public service vehicle operator’s licence should apply to the company.  For that reason he has failed to produce the information and documentation which the Traffic Commissioner’s Office correctly required him to produce on behalf of the company in order that the Traffic Commissioner could carry out her statutory duty under section 14(2).  That failure on his part left the Traffic Commissioner with no option but to hold that she could not be satisfied that the company met the relevant statutory provisions and that therefore their application for a public service vehicle operator’s licence should be refused.  We are further satisfied in view of the circumstances narrated in paragraphs 5 – 12 above that the conduct of the application on behalf of the company by Mr Cole was rightly regarded as “frivolous” and “unreasonable” by the Traffic Commissioner.  Thus she correctly dispensed with a public inquiry in this case under regulation 6.  We reach that conclusion once again having regard to the attitude of Mr Cole displayed in his correspondence and the written record of his telephone conversation with the Traffic Commissioner’s Office. 

15.	We thus dismiss the appeal and confirm the Traffic Commissioner’s decision.  

		     
			A J GAMBLE
			Judge of the Upper Tribunal
			Date: 5th August 2013