Neutral Citation Number: [2014] UKUT 0424 (AAC)		Appeal No.  T/2014/43

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of
Kevin Rooney, Traffic Commissioner for the 
North East of England Traffic Area dated 14 May 2014

Before:
Her Honour Judge J Beech, Judge of the Upper Tribunal
George Inch, Member of the Upper Tribunal
John Robinson, Member of the Upper Tribunal

Appellants:

LEE MAYFIELD trading as
LDF RECYCLING

Attendances:
For the Appellant: Mr Mayfield assisted by his Bookkeeper, Susan Biggs

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ
Date of hearing: 16 September 2014
Date of decision:   18 September 2014

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal in respect of the order of revocation be DISMISSED with effect from 23.59 on 14 October 2014 and that the appeal in respect of the order of disqualification be ALLOWED.

SUBJECT MATTER:-  Unauthorised parking; loss of fitness to hold restricted licence; disqualification.

CASES REFERRED TO:-  Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ. 695.

REASONS FOR DECISION

1.	This was an appeal from the decision of the Traffic Commissioner (“TC”) for the North East of England Traffic Area made on 14 May 2014 when he revoked the restricted operator’s licence held by Mr Mayfield under s.26(1)(a), (e) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) and disqualified Mr Mayfield from applying for or holding an operator’s licence for a period of one year under s.28 of the Act.  The orders were to take effect at 23.59 on 14 June 2014. 
2.	The factual background to the appeal appears from the documents and the Traffic Commissioner’s written decision.  On 6 September 2011, Mr Mayfield was granted a restricted operator’s licence authorising one vehicle which was a 7.5 tonne tipper vehicle with an integrated grab (“the vehicle”).  The authorised operating centres were at 11 Holywell Road, Sheffield and Coe Crete Limited, Colliery Road, Sheffield.
3.	Very soon after the grant of the licence, the VOSA Regional Intelligence Unit in Leeds (now DVSA) received complaints that Mr Mayfield’s vehicle was being parked when not in use outside an address on Wooley Wood Road, Sheffield which is in a residential area.  A letter was sent to Mr Mayfield at his correspondence address in September 2011 reminding him of the requirement to park his vehicle at one of his authorised operating centres.  When it became apparent that Mr Mayfield was continuing to park the vehicle in Wooley Wood Road, a further letter was sent to him in March 2012 which reiterated the requirement to park his vehicle at one of the authorised operating centres and warning him that should he fail to comply with his licence requirements, further action could be taken in the form of a report to the TC.
4.	During the course of 2012, it became apparent that Mr Mayfield was continuing to park his vehicle in Wooley Wood Road.  Regular meetings took place with a number of public service organisations in the Sheffield area in an attempt to address complaints made about Mr Mayfield in his capacity as a scrap metal dealer and in particular the continuing complaints about unauthorised parking.  In December 2012, STE Horton applied for permission under the Regulation of Investigatory Powers Act 2000 to undertake directed surveillance on Wooley Wood Road.
5.	The surveillance was undertaken by Vehicle Examiners Mellor and Lewis over the period 7 January to 20 January 2013.  The combined result of that surveillance was that the vehicle was seen parked in a laden state in Wooley Wood Road on the following dates:
7	January 2013 at 22.00hrs
8	January 2013 at 18.30hrs
9	 January 2013 at 21.15hrs
10	January 2013 at 19.15hrs
11	January 2013 at 21.45hrs
12	January 2013 at 19.30hrs
13	January 2013 at 18.30hrs
15	January 2013 at 21.15hrs
16	January 2013 at 23.00hrs
17	January 2013 at 19.25hrs
18	January 2013 at 07.15hrs
19	January 2013 at 20.15hrs
20	January 2013 at 18.15hrs

6.	Mr Mayfield was interviewed by TE Devlin and Acting STE Greenfield on 28 March 2013.  Mr Mayfield accepted that on occasion, he visited Wooley Wood Road for meals at his Bookkeeper’s house but maintained that the vehicle was always returned to the operating centre at night.  He believed that the police “had it in for him” and his operator’s licence.  
7.	During the course of the public inquiry that took place on 8 April 2014, the TC analysed the tachographs produced by Mr Mayfield.  On 7 January 2013, the tachograph recording finished at 18.15hrs with an odometer reading of 151,592kms.  The next chart was dated 14 January 2013 with a start odometer reading of 151,592kms.  The finish odometer reading on that chart was either 151602 or 151607 depending on the reading of the last digit.  The next chart was dated 20 January 2013 with a start odometer reading of 151607 with a finish odometer reading of 151617 at 14.30hrs.  The vehicle did not then move until 15.00hrs on 21 January 2013.
8.	Mr Mayfield denied that he had ever parked the vehicle overnight in Wooley Wood Road.  He queried whether the traffic examiners had been recording the correct registration number when conducting their surveillance.  His vehicle may have been parked in Wooley Wood Road whilst he cleaned it but that was it.  Mr Mayfield believed that he was being victimised by the police as a result of the police having to return to him the sum of £50,000 in cash which had been confiscated from him on the suspicion that it was the proceeds of crime.  Since then, there had been an unsuccessful attempt to have his scrap metal licence revoked and the police had caused the Inland Revenue to investigate his finances.  Mr Mayfield believed that he was being punished for being successful and that the police were attempting to have his operator’s licence revoked.   
9.	Mr Mayfield doubted whether the vehicle examiners had in fact undertaken any surveillance in Wooley Wood Road as they would have been warned by the police that sawn off shotguns had been fired at the windows of his property in the past.  There were police cameras situated in Wooley Wood Road and the recordings would reveal that at the relevant times the vehicle examiners had not been in the vicinity of Wooley Wood Road as they had maintained.  
10.	As a result of Mr Mayfield disputing the evidence of the traffic examiners, the TC offered him an adjournment so that the examiners could be called to be cross examined.  The TC did however make it clear that he would only permit such examination by a legal representative instructed by Mr Mayfield as he was not going to permit a “slanging match”.  Mr Mayfield refused the offer of an adjournment as representation would cost him money and this is “what the police do”.  
11.	In his written decision, the TC found that the evidence of TE’s Mellor and Lewis was consistent and compelling and supported by the contents of the interview of Mr Mayfield.  The TC’s own analysis of the tachographs confirmed that the vehicle had been parked in Wooley Wood Road from 7 to 14 January and from 15 to 20 January 2013.  The TC further found that Mr Mayfield had lied to him during the course of the public inquiry.  The vehicle had spent much of its life parked on Wooley Wood Road.  Operator licensing was based on trust and once that bond was broken it was likely to be fatal to a licence.  The TC concluded that Mr Mayfield had lost his fitness to hold a restricted licence and such a finding was not disproportionate bearing in mind the paucity of evidence given by him as to the use of the authorised vehicle.  As a significant amount of Mr Mayfield’s business involved the use of his other vehicle, a 3.5 tonner, the loss of his licence would not prevent him pursuing his livelihood.  
12.	The TC’s decision to disqualify Mr Mayfield was based upon his finding that Mr Mayfield had difficulty in co-operating with enforcement authorities concerning the authorised vehicle and Mr Mayfield’s lack of honesty at the public inquiry.  The TC concluded that a disqualification period of one year would allow Mr Mayfield to reflect on his responsibilities as an operator.  
13.	At the hearing of this appeal, Susan Biggs assisted Mr Mayfield in presenting his case.  She is Mr Mayfield’s former partner and they have a grown-up son who sadly is autistic.  Ms Biggs requires considerable assistance from Mr Mayfield as a result.  He would visit her home in Wooley Wood Road in the vehicle and have a meal and enjoy contact with his son.  But the vehicle always returned to the operating centre.  Mr Mayfield did not accept that he “hardly used” the authorised vehicle.  In fact, he used it every day and he has now sold the 3.5 tonne vehicle he had been using.  Ms Biggs requested that Mr Mayfield be given an opportunity to continue with his licence as her own livelihood depended on the income from it and neither of them wished to claim benefits.  Mr Mayfield repeated his assertions that “this was all about the police” and that it all started when the police were required to return to him the £50,000 that they had confiscated.  The Tribunal pointed out to Mr Mayfield that the warning letters sent to him in September 2011 and March 2012 pre-dated the confiscation of the money which took place in October 2012, Mr Mayfield and Ms Biggs denied having received those letters.  Mr Mayfield maintained that he received regular visits from the police and his vehicle was regularly stopped so that his fuel tank could be checked for red diesel.
14.	Mr Mayfield contended that VOSA (now the DVSA) worked with the police and the police cameras should have been checked on Wooley Wood Road.  The Tribunal asked Mr Mayfield whether he was alleging a conspiracy between the vehicle examiners and the police. Ms Biggs responded that Mr Mayfield often did not come across well and that he did not think before he spoke.  He was concerned about losing his livelihood and that he had expected to be issued with a warning as other operators had in the past.  His health was failing him and he needed the authorised vehicle to be able to continue with his business.  The TC’s assessment of him was wrong and revocation and disqualification was too harsh.
15.	We are satisfied that the findings of fact made by the TC cannot be challenged as they are well supported by the evidence, in particular the tachograph discs.  It follows that Mr Mayfield was less than honest with the TC about the vehicle being parked in Wooley Wood Road.  That inevitably has such an adverse impact upon Mr Mayfield’s fitness to hold a licence that a finding that fitness was lost along with revocation of his the licence was inevitable.  It cannot be said that the decisions of the TC were either disproportionate or plainly wrong and we cannot find that we are impelled by reason of fact or law to interfere with the decision as per the test set out in Bradley Fold (supra).
16.	We did have some concerns about the TC determining that he would not permit Mr Mayfield to personally cross examine the traffic examiners if an adjournment was requested.  That determination did have a material impact upon Mr Mayfield’s decision as to whether he wished to ask for an adjournment and that in turn might have resulted in a perception of unfairness.  However, having had an opportunity of interacting with Mr Mayfield during the course of the appeal hearing, we are satisfied that the TC’s case management decision on that point cannot be characterised as either unfair or plainly wrong.  
17.	The remaining matter that does cause this Tribunal concern is the excessive and unexplained delay between the surveillance operation and Mr Mayfield’s interview in the early part of 2013 and the call up letter in March 2014.  A delay of a year without any evidence in the appeal papers before us to justify such delay cannot be condoned.  Mr Mayfield and Ms Biggs informed the court that as nothing more was received from VOSA immediately after the interview in March 2013 they had assumed that the matter had been closed.  Whilst revocation was inevitable as a result of the lack of honesty displayed by Mr Mayfield during the public inquiry, the order of disqualification should not have been made against the background of a delay of a year before this matter was raised in a call up letter.  We are satisfied that in the circumstances, the order was disproportionate.  As a result, we are satisfied that the order of disqualification should not stand.  The Tribunal advised Mr Mayfield that if this was to be the outcome of his appeal, he would be able to apply for a new licence immediately but that he must be prepared to persuade the TC that he can be trusted in the future to comply with all requirements attached to his licence and co-operate with the regulatory authorities.
18.	The appeal in respect of the order of revocation is dismissed and will come into effect at 23.59 on 14 October 2014.  The appeal in respect of the order of disqualification is allowed.

Her Honour Judge J Beech
 18 September 2014