Neutral Citation Number: [2010] UKUT 26 (AAC)

Appeal No. 2009/514

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Patrick Mulvenna Deputy Traffic Commissioner for the

North Eastern Traffic Area dated 7 July 2009

 

 

 

Before:

Hugh Carlisle QC Judge of the Upper Tribunal

Stuart James Member of the Upper Tribunal

John Robinson Member of the Upper Tribunal

 

 

Appellant:

PETER DRY LIMITED

(t/a AUTOSMART

 

 

 

Attendances:

For the Appellant: No-one appeared

 

 

Heard at: Victory House, 30-34 Kingsway, London.

Date of hearing: 12 January 2010

Date of decision: 26 January 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

 

 

 

REASONS FOR DECISION

 

 

1.           This was an appeal from the decision of the Deputy Traffic Commissioner for the North Eastern Traffic Area on 7 July 2009 when he refused the Appellant Company’s application for an operator’s licence.

 

2. The factual background appears from the documents and is as follows:

(i) On 26 April 2009 the Appellant applied for a restricted operator’s licence for six vehicles and two trailers. This was acknowledged by the Central Licensing Unit on 19 May when it was pointed out that supporting documents were required to show the number of vehicles for which parking permission had been given by the owner of the nominated operating centre. It was also necessary to demonstrate that financial resources of £11,200 were available: details of the necessary documents were given and, in particular, it was stated that authenticated bank statements for the previous three-month period were required.

(ii) No reply was received and on 16 June 2009 the caseworker again wrote to the Appellant and informed it that the application was likely to be refused if the outstanding documents were not provided: details were again set out. The Appellant was invited to telephone or email the caseworker if there was continuing uncertainty about what was required. Subsequently the Appellant sent in a “quotation for an enterprise finance guarantee” and a letter from Lloyds TSB dated 10 June 2009 discussing a facility for an overdraft of £29,000 but the offers made were expressly subject to receipt of further information. A letter from the manager of the nominated operating centre was also received but this again failed to specify the number of vehicles for which permission to park was being given.

(iii) On 19 June 2009 a caseworker telephoned the Applicant but there was no answer. A message was left for the Applicant to contact the Traffic Area Office but the call was not returned.

(iv) The application was put before the Deputy Traffic Commissioner on 7 July 2009 and then refused on the Traffic Commissioner’s behalf. Notification of this decision was sent on 9 July 2009.

(v) On 3 August 2009 the Appellant informed the Traffic Area Office that it wished to appeal. The letter enclosed a single statement sheet from Lloyds TSB but this was unauthenticated and for a period of two weeks only; and the funds shown were insufficient. Correct parking permission was still awaited. A caseworker spoke to Mr Peter Dry and he said that he had sent in his notice of appeal to the Tribunal. The application was again considered, on this occasion by the Traffic Commissioner himself, and he indicated his agreement to the refusal on 12 October.

(vi) The notice of appeal was sent into the Tribunal on 27 October 2009. Mr Dry stated that he had previously been out of work. He had not been able to submit bank statements for three months as he had only recently started trading. However, he said that he had provided all that he had available. The situation was again brought to the attention of the Traffic Commissioner and was succinctly summarised:-

“An appeal has been raised by the applicant. The company has claimed that they provided an overdraft facility agreement with Lloyds TSB and were unable to provide any other information at the time of application as they had only just secured funding. The letter received from Lloyds TSB was an offer of facilities should the company choose to move their banking to Lloyds TSB, it did not confirm that an account was opened nor that an overdraft was in place. At no time did the applicant inform the Central Licensing Office that the account had only just been opened or provide an opening bank statement and overdraft agreement confirming that the facility offered had been taken up or put in place. The applicant also states that a parking permission letter was provided; however we have not received a letter confirming the level of authorisation granted to the applicant by the land owner.”

On 10 November 2009 the Traffic Commissioner again indicated his agreement with the refusal.

 

3. The Appellant did not attend the hearing of the appeal. He stated by letter that he had been prevented by reason of unforeseen family commitments. He sent in bank statements for the period 28 July-24 December 2009. Although we are obliged only to consider the position as at the date of the decision on 7 July 2009 (see para.9(2), Schedule 4, Transport Act 1985), we have to observe that for most of the period the available balance in the account was less than £11,200 even after taking into account the expressed overdraft limit. In any event the correct parking permission had still not been supplied.

 

4. We have carefully considered the papers but have to say that the approach of the caseworkers, the Deputy Traffic Commissioner and the Traffic Commissioner cannot be faulted. The requirements were correctly set out from the beginning and the Appellant was invited to make contact in the event of difficulty. The Company did not do so. If bank statements were unavailable it could at least have provided evidence of a continuing overdraft facility. The Traffic Commissioner might have considered the grant of an interim licence to have enabled the Company to demonstrate how it was getting on. Even now no evidence of the facility has been provided and the available bank statements are inadequate to demonstrate the necessary finance. The correct parking permission remains outstanding.

 

5. It is to be regretted that those involved on the Appellant’s behalf did not bring their minds to bear on what was being required. We are satisfied that the application was correctly refused. Accordingly, the appeal is dismissed.

 

 

 

 

 

 

 

Hugh Carlisle QC

Judge of the Upper Tribunal

26 January 2010