Neutral Citation Number: [2015] UKUT 0256 (AAC)

IN THE UPPER TRIBUNAL					T/2015/12
ADMINISTRATIVE APPEALS CHAMBER

Appellant:		Optimus Access Ltd 

On Appeal From:		Traffic Commissioner for the South Eastern and Metropolitan Traffic Area

Reference: 		OK1132647	
Public Inquiry Date:		17th December 2014
Venue: 		Eastbourne
Decision Date:	        	16th January 2015

DECISION OF THE UPPER TRIBUNAL
ON AN APPEAL AGAINST THE TRAFFIC COMMISSIONER 

Upper Tribunal Judge H. Levenson
Upper Tribunal Member G. Inch
Upper Tribunal Member D Rawsthorn

T/2015/12

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
ON AN APPEAL AGAINST THE TRAFFIC COMMISSIONER FOR THE SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA

Decision 

1. Subject to a change to the effective date of implementation, this appeal does not succeed. We confirm the decision of the Traffic Commissioner given on 16th January 2015 following a public inquiry in Eastbourne on 17th December 2014 (reference OK1132647) (see paragraph 6 below). 

Hearing

2. We held an oral hearing of the appeal at Field House (London) on 29th April 2015. The appellant Optimus Access Ltd was represented by Andrew Kinnier of counsel, instructed by Cripps LLP, solicitors. He did not appear on behalf of the other subjects of the Traffic Commissioner’s order, who were not parties to the appeal and were unrepresented. 

Background

3. For reasons which will become apparent it is not necessary to go into a great deal of detail. On 26th August 2014 the appellant, Optimus Access Ltd, applied for a restricted goods vehicle licence to operate six vehicles and five trailers from a specific operating centre in Sevenoaks, Kent. The directors of the company were named as Michael Henry Collier and Dean Robert Betts. A connection was declared with an existing licence (OK0207599) held in the name of MR Scaffolding Limited. On 9th September 2014 an acknowledgement of the application was sent to the appellant and it was pointed out that while the application was being considered the appellant could not lawfully operate vehicles of more than 3.5 tonnes. The acknowledgement letter also asked for an explanation of the fact that a vehicle, operated by the appellant before a licence had been granted, had been stopped at the roadside on two occasions, and queried the link with MR Scaffolding Limited.

4. On 23rd September 2014 a letter, signed by Michael John Collier (the father of Michael Henry Collier) explained that he (Michael John) was a director of MR Scaffolding Limited, but that company was being wound up and it was planned that much of its work would be taken over by the appellant (Optimus Access Ltd) with which he (Michael John) would become involved (it later transpired that he was to become transport manager). He stated that the vehicle referred to in paragraph 3 above related to MR Scaffolding Limited and not to the appellant (Optimus Access Ltd). 

5. On 7th November 2014 the Traffic Commissioner granted the appellant an interim licence. Further information was received and on 11th and 13th November 2014 the Commissioner called the appellant to a public inquiry, which took place on 17th December 2014. The information was to the effect that a 7.5 tonnes vehicle, BX56ZZT, had been stopped on 21st August 2014, had no Ministry Plate and was found to be 12.4% overloaded with scaffolding equipment. The driver stated that he was working for the appellant, which was operating the vehicle. There was no licence disc displayed and no form of tachograph or log book record of drivers’ hours, although the traffic examiner had established that the driver had driven more than four hours on each of 16th and 19th August 2014. A fixed penalty was imposed on the driver for these offences. (At one point it seems that the driver claimed that he thought that this 7.5 tonne vehicle was a 3.5 tonne vehicle.) On 24th September 2014 the vehicle was stopped again. Notwithstanding the earlier statement by Michael John Collier it was established that the vehicle had been listed on the appellant’s application for a licence but had never been listed on any licence held by MR Scaffolding Limited. 

6. After taking evidence at the public inquiry the Commissioner found that the vehicle had been used on 78 days from August 2014 without there being the necessary operator’s licence and that the applicant could not be trusted to run a compliant operation. He:

(a) refused the appellant’s application for a restricted goods vehicle operator’s licence;

(b) revoked the interim licence as from 2359 on 31st January 2015;

(c) disqualified Dean Betts from holding or obtaining an operator’s licence or from being a director of a company which holds or obtains a licence, for the period of 12 months from 0001 on 1st February 2015; and

(d) disqualified Michael John Collier from holding or obtaining an operator’s licence or from being a director of a company which holds or obtains a licence, for the period of 12 months from 0001 on 1st February 2015.

7. On 11th February 2015 Dean Betts appealed to the Upper Tribunal against the decisions of the Traffic Commissioner. On 12th February 2015 the Traffic Commissioner granted a stay of implementation of the decision to revoke the licence until such time as the Upper Tribunal determined an appeal.

8. Technically Mr Betts was the appellant to the Upper Tribunal as named in the Notice of Appeal. However, he played no part in the appeal and we agree to treat Optimus Access Ltd as the intended and actual appellant in accordance with rule 9(1) of The Tribunal Procedure (Upper Tribunal) Rules 2008. This means that we are no longer considering the position of Dean Betts or Michael John Collier, who remain bound by the decisions of the Traffic Commissioner.

The Submissions

9. On the day before the Upper Tribunal hearing Mr Kinnier lodged a written submission on behalf of Optimus Access Ltd in which he stated that “until recently Optimus had not received advice on the merits of the appeal. Having now considered the matter fully, Optimus has decided not pursue the matter further”. In our view that is a perfectly proper course of action to take in this particular appeal and on that basis, subject to what follows, the appeal is dismissed.

10. The appellants did not seek to withdraw the appeal but in those submissions sought to postpone the revocation of the interim licence until 10th June 2015. This was on the basis that Optimus Access Ltd was a thriving business with 37 employees (anticipated to double by the end of 2015) and a healthy turnover and was in the process of appointing new directors with a view to making a fresh licence application. Time was needed to do this. He supplied supporting documentation. 

11. At the hearing before us Mr Kinnier confirmed that a new licence application had not yet been made but, having considered the matter overnight, asked that revocation of the interim licence be postponed to 31st July 2015.

12. In our view it is reasonable to postpone revocation until 10th June 2015, but taking account of the fact that it has already been nearly four months since the Traffic Commissioner gave his decision, and of the seriousness of the findings that had led to his decision, it would not be reasonable to postpone the revocation any further.

Conclusion

13. We confirm the orders made by the Traffic Commissioner as set out in paragraph 6 above, save that the interim licence is to be revoked with effect from 2359 on 10th June 2015.

H. Levenson
Judge of the Upper Tribunal 
13th May 2015