Neutral Citation Number: [2010] UKUT 155 (AAC)

Appeal No.  T/2010/003
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of
Lester Maddrell Deputy Traffic Commissioner for the North Western Traffic Area 
Dated 5 January 2010

Before:
His Hon. Michael Brodrick Judge of the Upper Tribunal
Leslie Milliken		
David Yeomans		

Appellant:
PETER GERECKE t/a WEST COAST ANTIQUES

	 
Attendances:
For the Appellant: Mr. O’Hara

Heard at:	Victory House
Date of hearing:	31 March 2010
Date of decision:	26 April 2010

DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be DISMISSED.

REASONS FOR DECISION

1.	This is an appeal from the decision of the Deputy Traffic Commissioner for the North Western Traffic Area to refuse to order the return of an impounded vehicle.
2.	The factual background to the appeal appears from the documents and the Traffic Commissioner’s decision and is as follows:-
(i)	The Appellant is the owner of a Mercedes goods vehicle registration number M421 GHP (“the vehicle”).  At the material time there was no goods vehicle operator’s licence in force for this vehicle.
(ii)	On 18 June 2008 the vehicle was stopped on the A483 at Welshpool.  As a result the Appellant was prosecuted for the offence of using the vehicle without an operator’s licence.  On 16 January 2009 the matter was heard in the absence of the Appellant.  He was convicted, fined £438 and ordered to pay costs of £335.
(iii)	On 25 November 2008 a Senior Traffic Examiner wrote to the Appellant stating that VOSA’s conclusion was that he was operating the vehicle illegally.  The licensing requirements were pointed out, as was the risk of the vehicle being impounded.  The letter was not acknowledged but, as a result, the vehicle became a potential target for impounding.
(iv)	On 22 July 2009 the vehicle was stopped on the M25 Motorway at Leatherhead.  The details noted by the Traffic Examiner, who had stopped the Appellant, were that the Appellant claimed to be on a private journey, from Germany to Wales, with a load of personal furniture.  No report was made.
(v)	On 15 October 2009 the vehicle was detained by VOSA, under the powers provided by Regulation 3 of the Goods Vehicles (Enforcement of Powers) Regulations 2001, (“the 2001 Regulations”), while it was on the M62/A627(M) at Thornham, Rochdale, Greater Manchester. 
(vi)	After its detention on 15 October 2009 the vehicle was taken to a VOSA site where a Traffic Examiner spoke to the Appellant.  It was found that the vehicle was loaded with furniture, including what appeared to be a new leather suite still wrapped in plastic and some flat-pack furniture.  According to the Traffic Examiner the Appellant said that this was his last day in England and that he was en-route to his port of departure, which was Hull.  The Police Officer who initially stopped the Appellant said that at the time he was Northbound on the M66 at Bury.  The Appellant was asked to produce his current tachograph sheet, which showed location entries for Manchester, Burnley and Exeter but only 90 minutes driving had been recorded prior to the vehicle being stopped.  Authority was then given for the vehicle to be impounded at which point the Appellant became irate and said that the Traffic Examiner was “cutting his legs off”.  It was pointed out that VOSA had written to the appellant inviting him to become a licensed operator.  The Appellant said that he had had the forms in November 2008 but that he and his girlfriend, who was also his business partner had split in 2009 and that he had been living in the vehicle ever since.  The Appellant was reluctant to provide a correspondence address, but eventually gave the address of Mr. O’Hara’s firm in order to receive the forms to claim return of the vehicle.
(vii)	Following the detention of the vehicle the appropriate notice was given in the London Gazette to enable anyone with a claim to the vehicle and/or the contents to submit their claim to VOSA.
(viii)	On 26 October 2009 the Appellant applied to the Traffic Commissioner for the return of the vehicle.  The Appellant indicated that he did not want the matter determined at a hearing.  The ground given for the application was that the Appellant did not know that the vehicle was being or had been used in contravention of s. 2 of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"] .
(ix)	On the same date Mr. O’Hara wrote to VOSA.  He explained that the Appellant and his partner broke up towards the end of 2008 and that it was agreed between them that the Appellant would acquire the vehicle and that he would use it to recover his share of the business stock, in order to take it to Germany.  He said that the paperwork in relation to the criminal proceedings should have been forwarded to him but that this did not happen.  As a result he had arranged for the Appellant to attend the Magistrates Court in order to deal with all outstanding matters.  He went on to say that it was intended to have the vehicle registered in Germany.  He invited VOSA to release the vehicle on the basis that no application for an operator’s licence was necessary.
(x)	On 4 November 2009 the Traffic Commissioner decided that the matter ought to be decided at a Public Inquiry and the Appellant was therefore invited to attend a hearing on 24 November 2009.  That hearing was later adjourned.
(xi)	On 18 December 2009 the matter came before the Deputy Traffic Commissioner.  The Appellant attended, being represented by Mr. O’Hara, and Mr Brougham appeared on behalf of VOSA because the Traffic Examiner who had originally dealt with the case no longer worked for VOSA.
(xii)	Mr. Brougham presented the Traffic Examiner’s report, which has been summarised above.
(xiii)	Mr. O’Hara sought clarification as to what it was that the Appellant had done wrong.  The Deputy Traffic Commissioner explained the system of Goods Vehicle Operator’s Licensing at which point Mr. O’Hara said that he was not sure what was meant by the Appellant “operating in business”.  He explained that the business conducted by the Appellant and his partner had come to an end, towards the end of 2008, that the vehicle had been registered in the name of the Appellant in early 2009 and that he was simply using it to carry his share of the business assets back to Germany.  He went on to say that the Appellant had assumed that what he was doing was perfectly legal and that he was not breaking any rules and that he had come to pick up the last or almost last load of stock at which point the vehicle would have been registered in Germany.  He added that the Appellant had been stopped twice in the course of the last trip but that on each occasion, having listened to his story he was allowed to continue without any suggestion that he was breaking the law.
(xiv)	The Appellant was then asked some questions by the Deputy Traffic Commissioner.  The Appellant accepted that he had received the letter dated 25 November 2008 in which VOSA had explained the need for an operator’s licence.  He said that he had begun to complete the form but that before he made the application his relationship broke down and he decided to return to Germany.  The Appellant was then asked about the occasion on which he had been stopped on 22 July 2009.  He said that he had attended an antique showground at Gatwick Airport and that he was travelling to Wales because he had more furniture to collect.  He agreed that when he was stopped there was already furniture on the lorry and said that it had come from the antique showground.  When asked why he had gone there he replied that he was a ‘furniture dealer’.  The Deputy Traffic Commissioner then said: “so in July you were running a business as a furniture dealer”.  To which the Appellant replied: “Well I’ve been … I’ve been yesterday on an antiques show, you know, a different van”. 
(xv)	The Deputy Traffic Commissioner then asked the Appellant where he was coming from and where he was going to on 15 October 2009 before the vehicle was impounded.  The Appellant replied that he had a friend waiting in Burnley with a catalogue and that he had a piece of iron on the back of the vehicle for him.  But for that he said that he would have gone down to the ferry.  He added that he never booked on the ferry and that he had a German friend with him.  He was shown a tachograph chart for 3 October 2009 on which the name of the driver was shown as A. Topper.  He said that this was the friend he had mentioned.  The Deputy Traffic Commissioner then asked the Appellant about the journeys shown on a number of tachograph charts.  Dealing with the chart for 13 October 2009 the Appellant explained that he had driven from Bangor to show the friend Manchester and ‘some nice parts of the country’.  The Appellant said that his friend was in the furniture business as well but that he was there to help with the driving rather than for business reasons.  He said that on the following day, when the vehicle travelled 67 kilometres in three short journeys, they were in the Manchester/Burnley area.  He said that it was not business use but sightseeing.
(xvi)	The Deputy Traffic Commissioner then returned to 15 October 2009 and the locations of Manchester, Burnley and Exeter.  The Appellant said that he went to see a friend in Exeter before going on the ferry.  When the Deputy Traffic Commissioner asked why the Appellant would go from Exeter up to Hull to catch the ferry the Appellant replied that he was going to the ferry at Dover.  He denied telling the Traffic Examiner that he was going to Hull for the ferry.  He said that there must have been a misunderstanding because he never caught the ferry at Hull.  He added that the furniture on the lorry when he was stopped was his.  When asked why he had it he replied that he had a business in this country from 1998 to 2006, ’10 years’.  The Deputy Traffic Commissioner queried the year 2006 and the Appellant confirmed he was in business until 1 April 2006 after which 15,000 square feet of antiques was put into storage in containers.  The Appellant denied that when using the vehicle to carry stock back to Germany he was using it ‘in connection with the business’ because the business ‘didn’t exist any more’.
(xvii)	At this point Mr. O’Hara intervened to submit that a private individual who sells his personal assets is not carrying on a business in the eyes of the Inland Revenue.  He asserted that the fact that there was a warehouse full of furniture might make it a bit unusual but did not change the ‘true context’ of what was happening.
(xviii)	The Deputy Traffic Commissioner gave a written decision dated 5 January 2010.  He reviewed the evidence and made a number of findings.  He then turned to the critical question namely the Appellant’s assertion that since the business had ceased there was no need for an operator’s licence.  He concluded that there was still a business being operated but that if that was wrong the vehicle was, nevertheless being used ‘in connection with a business carried on by the Appellant’, within the meaning of s. 2 of the 1995 Act.  The Deputy Traffic Commissioner went on to explain why he concluded that the Appellant was still operating a business.  He relied on the Appellant’s later evidence that the partnership ended in 2006, the fact that there were leaflets for West Coast Antiques still in the vehicle, the tachographs showing various short journeys as one would expect when the vehicle was being used for business, the visit to the antiques fair at Gatwick, the admission that the Appellant was an ‘antiques dealer’ and the taking of furniture from Germany to Wales.  The Deputy Traffic Commissioner went on to assess the Appellant as a witness and concluded that he could not believe the Appellant’s assertion that he was no longer in business, he added: “I regret to say that I find Mr. Gerecke to be someone who will say whatever he feels at the time will be to his advantage”. 
(xix)	The Deputy Traffic Commissioner summed the matter up as follows: “I conclude that Mr. Gerecke has not told the truth about the use of the vehicle and that at the material time he was using it for a business purpose, he knew that fact and he knew that he needed an operator’s licence and he knew that he did not have an operator’s licence”.  On this basis he concluded that the detention of the vehicle was lawful and that the Appellant had not made out any ground for its return, which was refused.
(xx)	On 7 January 2010 Mr. O’Hara wrote to the Tribunal to indicate that the Appellant would appeal on a number of grounds.  He also provided a ‘chronology of events’, and a document intended to indicate what the Inland Revenue considered to be ‘flags of trade’.  Neither of these documents was before the Deputy Traffic Commissioner.  The letter also referred to the contents of the vehicle and requested that the contents, at least, should be returned.
(xxi)	On 15 January 2010 the Appellant appealed.  The grounds of appeal were, (i) that the Deputy Traffic Commissioner failed to consider the Appellant’s changed circumstances and (ii) that the Deputy Traffic Commissioner had failed to understand what constituted ‘trading’.
3.	Mr. O’Hara submitted that the key issue was whether, at the time, the Appellant was ‘in trade or business in the UK’.  He argued that if the Appellant was not domiciled in the UK and not trading or doing business in the UK then there was no reason why he should require an operator’s licence.  Mr. O’Hara went on to point out that the Appellant was unaware of the criminal proceedings because the papers were improperly served.  He questioned the date of 2006  which is the date from which the Deputy Traffic Commissioner said that the Appellant had ceased to trade, saying that that was when the limited company was converted into a partnership.  He submitted that although the Appellant knew of the need for a licence, because he received the letter of 25 November 2008, circumstances changed thereafter to the point where the Appellant believed that the letter was irrelevant.  He submitted that if there was no definition of trading in the 1995 Act that it must follow that the Tribunal should apply the Inland Revenue’s definition because ‘trading’ was clearly defined in tax law and, on the basis of that definition the Appellant was not ‘trading’ so that the Deputy Traffic Commissioner was plainly wrong.
4.	It may be that it was unfortunate that the document setting out quotations in relation to the ‘flags of trade’ was not before the Deputy Traffic Commissioner.  Mr. O’Hara strongly submitted that it was only necessary to look at them to see that the Appellant was not trading.  We cannot agree.  To take the first three points by way of example they are: “(i) the subject matter of the realisation, (ii) the length or period of ownership and (iii) the frequency of similar transactions by the same person”.  One only has to state these propositions to see that each requires findings of fact before any safe conclusion can be drawn.  If the Public Inquiry had proceeded with these and similar points in mind the Deputy Traffic Commissioner the evidence would have been different and probably more detailed and the Deputy Traffic Commissioner would have made findings in relation to all the relevant points.  Since that did not happen we must proceed on the basis of the evidence before the Deputy Traffic Commissioner and the findings which he made.
5.	In an impounding case the burden of proof rests on the owner of the vehicle. It follows that it was for the Appellant to satisfy the Deputy Traffic Commissioner, on the balance of probability, that the ground relied on for the return of the vehicle had been made out.  Mr. O’Hara complained that many of the findings made by the Deputy Traffic Commissioner were not ‘facts’.  However in this jurisdiction, as in many others, it is open to the person deciding the case to draw inferences and to come to conclusions, provided that there is evidence to justify the findings made.  This was the approach adopted by the Deputy Traffic Commissioner, in our opinion he was fully entitled to do so.  Furthermore it was for the Deputy Traffic Commissioner, having had the advantage of seeing and hearing the witnesses, to make his own assessment of them, including the all important question or whether or not, in his view, a particular witness was telling the truth.  Unless it can be demonstrated from all the evidence that such a finding was ‘plainly wrong’ it is not for the Tribunal to substitute its own assessment.
6.	The critical question in this case turns on s. 2 of the 1995 Act, the relevant parts of which are in these terms:-
“2. (1) …… no person shall use a goods vehicle on a road for the carriage of goods-
(b) for or in connection with any trade or business carried on by him,
except under a licence issued under this Act: …”
	There is no doubt that the Appellant was using the vehicle, at the material time, on a road and for the carriage of goods.  The only question is whether it was being used ‘for or in connection with any trade or business carried on by him’.
7.	The Deputy Traffic Commissioner came to the conclusion that he could not believe the Appellant and that he was a person who would say whatever he felt, at the time, would be to his advantage.  Given the discrepancies which appeared between what the Appellant said in the course of the Public Inquiry and what he had said earlier it seems to us that this conclusion was fully justified and we can see no ground on which it can be overturned.
8.	The Deputy Traffic Commissioner also concluded that the Appellant was still carrying on a trade or business.  In our view the reasons given by the Deputy Traffic Commissioner for reaching that conclusion are compelling.  They do not simply depend on the finding that the Appellant was not telling the truth about his activities because the are reinforced by other evidence, including the nature of some of the journeys, the fact that furniture was being taken from Germany to Wales and the admission that the Appellant was an antiques dealer.
9.	In our view there was ample material to support the conclusions reached by the Deputy Traffic Commissioner.  The appeal fails and must therefore be dismissed. 

Michael Brodrick, Judge of the Upper Tribunal, 
Principal Judge for Traffic Commissioner Appeals.
26 April 2010