Martin Arthur, UK Road Transport Solicitor (Vehicle Licensing, Operator Licensing, Road Law)

	Martin Arthur, Solicitor Specialising in Road Transport Law, and Wills, Probate & Estate Planning Call now for free preliminary advice without obligation: 01763 208607

Home Road Transport Law for Vehicle Operators Road Transport Services Road Transport Links Wills, Probate & Estate Planning About Contact	Road Transport Law for Vehicle Operators Overview FAQ Dealing with Police or V.I. General Advice Decisions (Haulage) Decisions (PSVs) T.C. = Traffic Commissioner V.I. = Vehicle Inspectorate Recent Road Haulage Appeals (Last updated 14 March 2003) England & Wales Court of Appeal Crompton t/a David Crompton Haulage (Appellant) and Department of Transport North Western Area (Respondent) 28 January 2003 Operator’s appeal from a decision of the Transport Tribunal Road Haulage Appeals dismissing the operator’s appeal from a decision of the T.C. for the North Western Traffic Area who had revoked the operator’s operating licence on the basis that he was no longer of good repute for the purposes of section 27 of the Goods Vehicles (Licensing of Operators) Act 1995. The Court of Appeal (Lord Justice Kennedy) in finding for the Appellant stated: Both the T.C. and the Transport Tribunal are public authorities for the purposes of section 6 of the Human Rights Act 1998. They must therefore act in ways compatible with Convention Rights, and so far as possible, read and give effect to domestic legislation in a manner which is compatible with convention rights (see section 3(1) of the 1998 Act). An operator’s licence is a possession for the purposes of Article 1 of the First Protocol, so the appellant was not to be deprived of it – “except in the public interest and subject to the conditions provided for by law, and by the general principles of international law” those provisions shall not – “in any way impair the right of a state to enforce such law as it deems necessary to control the use of property in accordance with the general interest …” In Traktooer Aktiebolag v Sweden [1989] 13 EHRR 309 it was said by the European Court of Human Rights at paragraph 59 that a licence such as this (in that case a restaurant liquor licence) can be revoked lawfully in pursuit of a legitimate aim, but the action must be proportionate. That case is also authority for the proposition that when balancing the interests of the community against individual freedoms the state has a wide margin of appreciation (see paragraph 62). The observations were an echo of what had previously been said in Sporrong and Lonnroth v Sweden [1982] 5EHRR 35 at paragraph 69. The conclusion being that the T.C. when considering alleged loss of repute is required to focus on matters relevant to the individual’s fitness to hold a licence, bearing in mind – “(a) that an existing licence is a possession safeguarded by article 1 of the First Protocol, and – (b) that if loss of repute is found the inevitable sanction is revocation, possibly followed by an application for a fresh licence which may or may not be granted. There must therefore be a relationship of proportionality between the finding and the sanction, and that relationship has a direct bearing on the approach to be adopted in any set of circumstances to the question of whether or not the individual has lost his repute.” On the particular facts: “Reading the decision of the T.C. as a whole I cannot escape the conclusion that although she did initially ask herself whether the operator’s behaviour related to his fitness to hold a licence she then became more concerned with the unacceptability of the behaviour and failed to give mature consideration to the question of whether that behaviour really did demonstrate for the purposes of section 27(1) a loss of good repute, bearing in mind the inevitable consequences of such a finding, and the need for proportionality. In saying that I am not suggesting that there was any need for the T.C. expressly to refer to proportionality, or to anything other than the domestic legislation which was directly relevant, but the inappropriateness of her approach does seem to me to me most clearly demonstrated by her refusal to accept that by writing as he did to Miss Farr, and by apologising to the T.C. herself, the operator had done enough to demonstrate that, at any rate by 26 November 2001, he was once again of good repute. The Transport Tribunal, having set out the facts and summarised the submissions made on behalf of the appellant, said that his solicitor “repeatedly referred to the loss of the appellant’s good repute as too high a penalty or sanction, although he accepted the use of such terminology in the context of the jurisdiction and powers of T.C.s was inappropriate.” The terminology may have been inappropriate, but no doubt it was used because of the approach adopted by the T.C., whose decision in part is reminiscent of a judgment in proceedings for contempt of court. I recognise as did the Tribunal, that the T.C. had the benefit of seeing the operator, but to my mind little now turns on that because the T.C. made her conclusions clear. The Tribunal recognised that “her decision may be viewed as harsh”, but does not seem to have asked itself why it should be viewed in that way. In my judgment the reason was that the approach adopted by the T.C. faltered in the way that I have described. That was an error of law.” Transport Tribunal Appeal 1/2002 Bryan Haulage Limited 25 June 2002 Appeal against revocation of licence under s.26(1) and disqualification of directors under s.28. T.C. did not set out in his decision the assessment of, or findings of fact based on the assessment of, the nature, number and gravity of the breaches of tachograph regulations revealed by V.I. investigations or whether there was any evidence of instruction, encouragement or acquiescence on the part of the Appellant. The T.C. was further obliged to make an assessment of the evidence and make appropriate findings of fact in relation to the Appellant’s systems and steps taken to prevent breaches of the regulations and indicate the weight, if any, to be given to that evidence. T.C. should also consider the weight, if any, to be attached to the Appellant’s general record, performance, reputation and enforcement history. In the absence of any adequate reasoning, it is impossible to assess what matters were taken into account by the T.C., the weight he placed upon those matters and whether he made the appropriate balancing exercise when considering the extent to which he should exercise his enforcement powers. Appeal allowed. Transport Tribunal Appeal 25/2002 H J Lea Oakes Limited 30 July 2002 Appeal against revocation allowed. In overall terms and in the light of the actions later taken this was not an appropriate case for revocation. Traffic Commissioner herself found that at the time of the public inquiry the systems were working well: it was at this date she had to decide the issue of repute. Failures shown to be out of character and by the date of the inquiry the Company had made every endeavour to comply with the requirements of health and safety law and of operator licensing. Transport Tribunal Appeal 30/2002 Steven Lloyd trading as London Skips 30 July 2002 Appeal against disqualification for an indefinite period allowed. Tribunal considered the power to disqualify in 74/2001 Brian Edward Clark. Did not consider that an additional feature is necessary before disqualification may properly be imposed but it is plain that this should not be routinely ordered as appears to have occurred. Transport Tribunal Appeal 81/2002 James Heaver & Maurice Heaver t/a Heaver Brothers Appeal against refusal of application for a Standard International operator’s licence on the ground that they did not fulfil the requirements of s13(3)(a) Goods Vehicle (Licensing of Operators) Act 1995 in that he found they were not of good repute. Among other matters, the Traffic Commissioner in finding that the use of Dutch vehicles contravened English and European law had misunderstood the concept and operation of cabotage pursuant to EC Regulation 3118/93, which (since 1998 when the initial “quota” system phasing in the legislation ended) had enabled an appropriately licensed haulier in a member state of the European Union to carry goods nationally within the territory of another member state, in accordance with the EU transport policy. The overall prohibition on restriction of freedom to provide services within the community is regulated by articles 49-50, but Article 51 of the EC Treaty (formerly Article 60) provides that freedom to offer services in the field of transport is specifically governed by the Title relating to Transport (Title V, formerly IV). The only requirement for a haulier established in one member state to be able to engage in cabotage, i.e. national transport, in another member state is that he holds a community authorisation issued under EC Regulation 88/92 which enables an operator to operate within another member state without having an office there (but does not prohibit him from having such an office. T.C. apparently mistakenly assumed that a company was required to be operating internationally in order to comply with the law and that as they were not they did not come within the definition of “international cabotage” (an expression itself a contradiction in terms). Moreover, for some reason, the T.C. relied on the case of Gebhard v Milan Bar Council, Case C-55/94, which had no relevance to road transport, or EC Regulation 3118/93 and no facts of relevance to the case before the T.C.: and the source material from which he had quoted in his original and amended decisions was a document of no legal standing, being merely a copy of a letter between parties in Greece discussing some provisions of EU law. Further that the T.C. had misdirected himself when he decided that a company was “established” for operator licensing purposes in the UK because it had a base in Cullompton, since the evidence was that the company was incorporated in Holland where it had premises and a Dutch international operator’s licence, and was lawfully carrying out cabotage nationally in the UK. The only salient feature of the Gebhard case which might have assisted the T.C. to assess the factual situation correctly, namely the fact that in that case the EC court had said that the provider of a service moving freely between member states as envisaged by the treaty could provide himself with infrastructure in the host member state, precisely as the company had done at Cullompton. The matter has since the Traffic Commissioner’s decision been considered by the European Court in Andreas Hoves International Transport Service v Finanzant Borken, Case 115/00 (a case on road tax for goods vehicles, EC Directive 89/93 and EC Regulation 3118/93, i.e. the cabotage regulation) which expressly confirms the right of a company lawfully constituted in one member state, and empowered by that country to carry out international carriage of goods by road, to be one of the beneficiaries of the freedom to operate national road haulage services in another member state. This ground of appeal was therefore allowed. A further ground of Appeal was non-disclosure by the T.C. to the Appellants of material in relation to the visit of “the Ministry” to the Dutch operation in Holland, which is referred to in the transcript, and of which the T.C. confirms his knowledge, and also of the letter between the parties in Greece which was subsequently disclosed to the Appellant’s representative when he queried the T.C.’s confusing case reference and legal source material. The right to proper disclosure of all material before the T.C. has repeatedly been asserted by the Tribunal in the past and this ground of appeal also succeeded.

T.C. = Traffic Commissioner

V.I. = Vehicle Inspectorate

Recent Road Haulage Appeals

(Last updated 14 March 2003)

England & Wales Court of Appeal Crompton t/a David Crompton Haulage (Appellant) and Department of Transport North Western Area (Respondent) 28 January 2003

Operator’s appeal from a decision of the Transport Tribunal Road Haulage Appeals dismissing the operator’s appeal from a decision of the T.C. for the North Western Traffic Area who had revoked the operator’s operating licence on the basis that he was no longer of good repute for the purposes of section 27 of the Goods Vehicles (Licensing of Operators) Act 1995.

The Court of Appeal (Lord Justice Kennedy) in finding for the Appellant stated:

Both the T.C. and the Transport Tribunal are public authorities for the purposes of section 6 of the Human Rights Act 1998. They must therefore act in ways compatible with Convention Rights, and so far as possible, read and give effect to domestic legislation in a manner which is compatible with convention rights (see section 3(1) of the 1998 Act).

An operator’s licence is a possession for the purposes of Article 1 of the First Protocol, so the appellant was not to be deprived of it –

“except in the public interest and subject to the conditions provided for by law, and by the general principles of international law”

those provisions shall not –

“in any way impair the right of a state to enforce such law as it deems necessary to control the use of property in accordance with the general interest …”

In Traktooer Aktiebolag v Sweden [1989] 13 EHRR 309 it was said by the European Court of Human Rights at paragraph 59 that a licence such as this (in that case a restaurant liquor licence) can be revoked lawfully in pursuit of a legitimate aim, but the action must be proportionate. That case is also authority for the proposition that when balancing the interests of the community against individual freedoms the state has a wide margin of appreciation (see paragraph 62). The observations were an echo of what had previously been said in Sporrong and Lonnroth v Sweden [1982] 5EHRR 35 at paragraph 69.

The conclusion being that the T.C. when considering alleged loss of repute is required to focus on matters relevant to the individual’s fitness to hold a licence, bearing in mind –

“(a) that an existing licence is a possession safeguarded by article 1 of the First Protocol, and –

(b) that if loss of repute is found the inevitable sanction is revocation, possibly followed by an application for a fresh licence which may or may not be granted. There must therefore be a relationship of proportionality between the finding and the sanction, and that relationship has a direct bearing on the approach to be adopted in any set of circumstances to the question of whether or not the individual has lost his repute.”

On the particular facts:

“Reading the decision of the T.C. as a whole I cannot escape the conclusion that although she did initially ask herself whether the operator’s behaviour related to his fitness to hold a licence she then became more concerned with the unacceptability of the behaviour and failed to give mature consideration to the question of whether that behaviour really did demonstrate for the purposes of section 27(1) a loss of good repute, bearing in mind the inevitable consequences of such a finding, and the need for proportionality. In saying that I am not suggesting that there was any need for the T.C. expressly to refer to proportionality, or to anything other than the domestic legislation which was directly relevant, but the inappropriateness of her approach does seem to me to me most clearly demonstrated by her refusal to accept that by writing as he did to Miss Farr, and by apologising to the T.C. herself, the operator had done enough to demonstrate that, at any rate by 26 November 2001, he was once again of good repute.

The Transport Tribunal, having set out the facts and summarised the submissions made on behalf of the appellant, said that his solicitor “repeatedly referred to the loss of the appellant’s good repute as too high a penalty or sanction, although he accepted the use of such terminology in the context of the jurisdiction and powers of T.C.s was inappropriate.” The terminology may have been inappropriate, but no doubt it was used because of the approach adopted by the T.C., whose decision in part is reminiscent of a judgment in proceedings for contempt of court. I recognise as did the Tribunal, that the T.C. had the benefit of seeing the operator, but to my mind little now turns on that because the T.C. made her conclusions clear. The Tribunal recognised that “her decision may be viewed as harsh”, but does not seem to have asked itself why it should be viewed in that way. In my judgment the reason was that the approach adopted by the T.C. faltered in the way that I have described. That was an error of law.”

Transport Tribunal Appeal 1/2002 Bryan Haulage Limited 25 June 2002

Appeal against revocation of licence under s.26(1) and disqualification of directors under s.28.

T.C. did not set out in his decision the assessment of, or findings of fact based on the assessment of, the nature, number and gravity of the breaches of tachograph regulations revealed by V.I. investigations or whether there was any evidence of instruction, encouragement or acquiescence on the part of the Appellant. The T.C. was further obliged to make an assessment of the evidence and make appropriate findings of fact in relation to the Appellant’s systems and steps taken to prevent breaches of the regulations and indicate the weight, if any, to be given to that evidence. T.C. should also consider the weight, if any, to be attached to the Appellant’s general record, performance, reputation and enforcement history. In the absence of any adequate reasoning, it is impossible to assess what matters were taken into account by the T.C., the weight he placed upon those matters and whether he made the appropriate balancing exercise when considering the extent to which he should exercise his enforcement powers. Appeal allowed.

Transport Tribunal Appeal 25/2002 H J Lea Oakes Limited 30 July 2002

Appeal against revocation allowed. In overall terms and in the light of the actions later taken this was not an appropriate case for revocation. Traffic Commissioner herself found that at the time of the public inquiry the systems were working well: it was at this date she had to decide the issue of repute. Failures shown to be out of character and by the date of the inquiry the Company had made every endeavour to comply with the requirements of health and safety law and of operator licensing.

Transport Tribunal Appeal 30/2002 Steven Lloyd trading as London Skips 30 July 2002

Appeal against disqualification for an indefinite period allowed. Tribunal considered the power to disqualify in 74/2001 Brian Edward Clark. Did not consider that an additional feature is necessary before disqualification may properly be imposed but it is plain that this should not be routinely ordered as appears to have occurred.

Transport Tribunal Appeal 81/2002 James Heaver & Maurice Heaver t/a Heaver Brothers

Appeal against refusal of application for a Standard International operator’s licence on the ground that they did not fulfil the requirements of s13(3)(a) Goods Vehicle (Licensing of Operators) Act 1995 in that he found they were not of good repute.

Among other matters, the Traffic Commissioner in finding that the use of Dutch vehicles contravened English and European law had misunderstood the concept and operation of cabotage pursuant to EC Regulation 3118/93, which (since 1998 when the initial “quota” system phasing in the legislation ended) had enabled an appropriately licensed haulier in a member state of the European Union to carry goods nationally within the territory of another member state, in accordance with the EU transport policy. The overall prohibition on restriction of freedom to provide services within the community is regulated by articles 49-50, but Article 51 of the EC Treaty (formerly Article 60) provides that freedom to offer services in the field of transport is specifically governed by the Title relating to Transport (Title V, formerly IV). The only requirement for a haulier established in one member state to be able to engage in cabotage, i.e. national transport, in another member state is that he holds a community authorisation issued under EC Regulation 88/92 which enables an operator to operate within another member state without having an office there (but does not prohibit him from having such an office. T.C. apparently mistakenly assumed that a company was required to be operating internationally in order to comply with the law and that as they were not they did not come within the definition of “international cabotage” (an expression itself a contradiction in terms).

Moreover, for some reason, the T.C. relied on the case of Gebhard v Milan Bar Council, Case C-55/94, which had no relevance to road transport, or EC Regulation 3118/93 and no facts of relevance to the case before the T.C.: and the source material from which he had quoted in his original and amended decisions was a document of no legal standing, being merely a copy of a letter between parties in Greece discussing some provisions of EU law.

Further that the T.C. had misdirected himself when he decided that a company was “established” for operator licensing purposes in the UK because it had a base in Cullompton, since the evidence was that the company was incorporated in Holland where it had premises and a Dutch international operator’s licence, and was lawfully carrying out cabotage nationally in the UK.

The only salient feature of the Gebhard case which might have assisted the T.C. to assess the factual situation correctly, namely the fact that in that case the EC court had said that the provider of a service moving freely between member states as envisaged by the treaty could provide himself with infrastructure in the host member state, precisely as the company had done at Cullompton.

The matter has since the Traffic Commissioner’s decision been considered by the European Court in Andreas Hoves International Transport Service v Finanzant Borken, Case 115/00 (a case on road tax for goods vehicles, EC Directive 89/93 and EC Regulation 3118/93, i.e. the cabotage regulation) which expressly confirms the right of a company lawfully constituted in one member state, and empowered by that country to carry out international carriage of goods by road, to be one of the beneficiaries of the freedom to operate national road haulage services in another member state. This ground of appeal was therefore allowed.

A further ground of Appeal was non-disclosure by the T.C. to the Appellants of material in relation to the visit of “the Ministry” to the Dutch operation in Holland, which is referred to in the transcript, and of which the T.C. confirms his knowledge, and also of the letter between the parties in Greece which was subsequently disclosed to the Appellant’s representative when he queried the T.C.’s confusing case reference and legal source material. The right to proper disclosure of all material before the T.C. has repeatedly been asserted by the Tribunal in the past and this ground of appeal also succeeded.

Martin Arthur, Solicitor

Specialising in Road Transport Law, and Wills, Probate & Estate Planning