Neutral Citation Number: [2011] UKUT 208 (AAC)

Appeal No.  T/2011/6
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Miles Dorrington
Deputy Traffic Commissioner for the Eastern Traffic Area 
Dated 10 December 2010

Before:
Frances Burton, Judge of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal
David Yeomans, Member of the Upper Tribunal

Appellant:
			MR & MRS NGANTU (REPRESENTORS)
			RE: SPEEDCRETE CP LIMITED

	 
Attendances:
For the Appellant:        Mr & Mrs Ngantu in person

Heard at:                    Victory House, London WC2B 6EX
Date of hearing:        20 April 2011
Date of decision:      20 May 2011

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED to the extent that the case for review of the decision be remitted for reconsideration by a different Traffic Commissioner or Deputy Traffic Commissioner

REASONS FOR DECISION

1.	This was an appeal against a refusal dated 10 December 2010 by the Deputy Traffic Commissioner for the Eastern Traffic Area to review his Decision dated 17 November 2010  under s.36 of the Goods Vehicle (Licensing of Operators) Act 1995 to grant an operator’s licence to Speedcrete CP Limited at Unit 1, 70 Station Road, Terrington St Clements, Kings Lynn PE34 4PL. The request for the review was made by the Appellant representors as owners of the land through which the operator has to pass in order to access the operating centre site, the land being residential property cultivated as a gated garden at “The Willows”, 70 Station Road, PE34 4PL. Their right to appeal is given by s.37(6) of the Act.
2.	The factual background appears from the documents, the Deputy Traffic Commissioner’s Decision of 17 November 2010 (grant of the licence) and 10 December 2010 (refusal of review) and the subsequent correspondence, and is as follows.
(i)	On 17 November 2010 the Traffic Commissioner’s Office at Leeds notified the Appellants, who had made valid representations against grant of the licence to Speedcrete CP Limited, that the licence had been granted following extensive efforts within the Traffic Commissioner’s office team (seen and approved by the Traffic Commissioner) to grant with conditions acceptable to the Applicant operator and to the opposing representors.   However correspondence had not been answered by the Appellants. The following conditions from the interim licence restricting the authorised vehicles had been attached. In summary:
-	no loading or unloading nor movements of authorised vehicles at the operating centre except between 07.00 – 17.30 hours Monday to Friday
-	no loading/unloading or movements except between 07.00 – 12.00 on Saturdays
-	no operation, movement, loading or unloading on Sundays or Bank Holidays
-	vehicles entering or leaving only in forward gear and at a speed of no more than 5 mph
-	vehicles not to exceed 12,000 kg gpw
-	full written explanations to the Traffic Commissioner whenever a vehicle returned late owing to unforeseen circumstances (and that this should be neither regular nor frequent).
The operator had accepted these conditions. The Appellant representors did not, and immediately sent an email requesting all underlying documentation and a review of the Decision. They claimed procedural irregularities.
(ii)	Correspondence then ensued in which the Appellant representors responded to the allegation that they did not live at the operating centre address and had not for some years, pointing out that they still had rights to make representations and indicating that children of their present tenants lived at the address and that their own residence elsewhere was immaterial (which right was acknowledged by the Traffic Commissioner). The Senior Traffic Commissioner’s secretariat then arranged to look into sending copies of the documentation on the basis of which the decision to grant the licence had been made, but then informed the Appellant representors that the documents they sought fell within the Traffic Commissioner’s tribunal functions and were not therefore available under the terms of the Freedom of Information Act 2000, but that their representations had been taken into account by him.
(iii)	Further correspondence had then ensued in which the Appellant representors asked for a stay pending an appeal by them to the Upper Tribunal, but by letter of 13 December 2010 this was refused as the Traffic Commissioner had no such power because the representors “had no right of appeal” against grant of the licence. However the same letter stated that owing to their continued dissatisfaction (with the original Decision to grant the licence subject to conditions) the matter was referred back to the Deputy Traffic Commissioner to consider if there were any grounds to justify a review of his determination. The letter then repeated the DTC’s decision on review:
-	acknowledging the Appellants’ original representations had been validly made
-	confirming that there was only a discretion to refuse an application on environmental grounds, and that in considering whether there should be such a refusal the Traffic Commissioner can consider whether conditions can be imposed under s.23 for “preventing or minimising any adverse effects or environmental conditions” but that only an operator (and not a representor) can comment on such conditions.
-	stating that nevertheless the Leeds office had in this case engaged with both parties in an attempt to find an amicable solution, and a Traffic Examiner had been sent to the site to inspect it and to prepare a report which had led to the formulation of the conditions ultimately applied to the licence (and which had been notified to the Appellants on 27 October 2010 with no response being received by the stated deadline of 8 November 2010)
-	concluding that there were no grounds for review of the original decision as all procedural requirements had been properly complied with, that his discretion had been properly exercised, and that he was satisfied that the operator’s licence had been appropriately granted.
(iv)	The Appellant representors immediately replied by email on 15 December 2010 in which they expressed surprise that the Deputy Traffic Commissioner had conducted his review without taking their points into account (which they had then added to their email). In summary their points were:
-	access for trucks to the operating centre site was through a gated garden of residential property (and Speedcrete continually left gates open)
-	the site visit had taken place without any consultation with them as owners and the resulting report had referred to its location in a cul-de-sac, which was incorrect
-	the operating centre site had insufficient turning space for ordinary vehicles, so that trucks were entirely unsuitable there
-	the site had planning permission for light use only (which was inconsistent with use for heavy goods vehicles)  because of close proximity to residential property
-	their residential property would be devalued by the adverse effects of noise, visual intrusion, vibration, fumes and pollution from vehicles
-	the site had never been an operating centre before
-	the conditions extended the previous business hours
-	they had not received relevant documents which had influenced the decision, e.g. the site visit report.
They reiterated that they did not believe that these points had been taken into account and that they would seek judicial review unless the Decision was reviewed taking these relevant points into account.
(v)	The Traffic Commissioner’s office at Leeds maintained its position, writing to the Appellants on 5 January 2011 repeating the DTC’s refusal to review his Decision and alerting them to their right to appeal to the Upper Tribunal by 13 January 2011. This the Appellants had in fact done on 9 December 2010 (received by the Tribunal Service on 10 December 2010).
3.	At the hearing of the appeal the Appellants attended personally and had also sent written representations summarising their concerns. Mr Ngantu began to make submissions to us with additions from Mrs Ngantu, and ultimately they made submissions in turn, adding to each other’s account. Having failed to obtain the documents they sought (on which the Deputy Traffic Commissioner’s original Decision had been based) having applied under the Freedom of Information Act, the Appellants had been able to obtain all these when the hearing bundle had been prepared by the Traffic Commissioner’s Office and, for the usual procedural reasons of natural justice, copied the bundle to them. Mrs Ngantu first commented that there were inaccuracies in the Team Leader’s submission on Environmental matters to the TC (e.g. on p.18 of the bundle it was stated that the representors had not lived at “The Willows” address since 2007, whereas she said the date was 2009) and in any case they intended to return to live there. They currently lived at 75 Station Road, and “The Willows” was tenanted. We explained that this particular inaccuracy did not matter as they still had a right as owners to make representations, whether they currently lived there or not. Mrs Ngantu conceded that the further statements that the previous occupant of the operating centre, a Mr Thomas, had also been in dispute with them about access to the operating centre and that there had been court action about this were correct.   She submitted that the document gave a one sided account in which she and her husband were made out to be vexatious complainants whereas they were the injured parties as Mr Thomas had abused and misused the right of way through their land.   She stated that it was wrong to refer to them as having “a history of complaints regarding the use of the site”,  as though there was something wrong with their objecting to the use of the right of way through their garden by large lorries. We noted that the internal documents on which the DTC had based his Decision included an account of the request for a Traffic Examiner to report on the representors’ concerns about capacity of the operating centre and the road safety concerns about access; and that the recommendation of the member of staff to the TC had very properly therefore been that no interim licence should be granted until a report on these matters was available, with which the TC agreed, further requesting investigation of the alleged “prior history” of complaints.
4.	We noted that the internal documents indicated that a TE had inspected the site and had accessed a copy of the deed in favour of the applicant operator giving them a right of way from and to the operating centre for all purposes and at all times, with and without vehicles. However he had also noted that “the access granted to the yard passes right next to the residential property of 70 Station Road” and “there is a genuine impact on this residential property”, but that other houses nearby would not be so adversely affected. The TE recommended grant of the licence with the conditions about entry, exit and size of vehicle later adopted but recommending 08.00 as the morning start time for operation of HGVs. The internal recommendations continued “It appears that the representor Mr Ngantu has a long history of opposition to anyone operating from 70 Station Road and has allegedly resorted to illegal practices in the past on two occasions to prevent access to the site, the first resulting in the court judgment above. The current occupiers of “The Willows”, 70 Station Road, have not raised any opposition to the application. The TE report indicates that the site is suitable both environmentally and regarding road safety”.
5.	Mrs Ngantu commented that the internal document mentioned a second access to the operating centre, which would not require large HGVs to pass close to the house at “The Willows” but that it seemed this had not been considered by the TE or the DTC. She and Mr Ngantu produced photographs illustrating the plans in the hearing bundle, which showed (1) the extreme closeness of the right of way to the house (including its windows) and (2) the second (alternative) access referred to, which it appeared that the TE had not reported on. It was apparent that the suggested conditions proposed by the TE had then been put to the applicant operator who had rejected the 08.00 start time as the factory on the site started work at 07.00 am. The Applicant had commented that the secondary access was unsuitable to gain access to the operating centre as it was impossible to drive right through to the yard, but this was possible from the 24 hour right of way they had past “The Willows”. We noted that the Applicant representors had not, however, replied to this consultation, putting their side of the case, and as a result the TC had granted an interim licence on 1 November 2010 as the applicant operator was “desperate” to operate a vehicle and on 12 November 2010 it was decided that their silence was deemed acceptance, so that on 16 November 2010 the DTC decided that everything possible had been done to reach an amicable accommodation between the parties. Mrs Ngantu, however, told us that while she and her husband accepted the right of way, they did not accept its use for large lorries, they had repeatedly made this clear in their representations, they did not receive the communications requesting further comment, and that in any case they considered they could not have made their case more plainly. They had also made it clear they lived at 75 and not 70 as if communications had gone astray it was not their fault, they also queried why the TE had not looked at the second access and commented on it as that appeared to have been completely ignored. She insisted there really was no room for a large lorry to turn as she had already said.
6.	We were concerned about the manner in which this case had been handled. We asked the Appellants whether the photographs they showed us (which made the problem abundantly clear) had been produced to the TC or DTC and were unable to establish whether they had been (as these were not in our bundle, although this was so poorly arranged that it was difficult to follow and the black and white aerial photograph included being practically illegible). It was clear to us that the Office of the Traffic Commissioner had given considerable weight to the applicant operator’s allegations of the representors’ “history” of objections and had treated them (without any evidence that this was so) as likely to be vexatious and also erroneously laboured the point that they did not at present live at “The Willows” but at 75 Station Road. The fact that the TE’s report omitted the second access exacerbated our concern that the site had not been thoroughly investigated at the TE’s visit on 19 August 2010, when he was shown round by Mr Robert Dod who said he was not a Director of the applicant operator nor did he operate the vehicles.
7.	In all the circumstances we are not satisfied that the representors’ valid concerns have been taken seriously and no site visit was made by the DTC. Having seen the photographs and compared them to the plans (as the aerial photograph in our bundle was illegible) we would have wanted to see the site for ourselves if we had been the DTC or indeed the TC and we wonder why neither was alerted to the potential of the second access or the unsuitability of HGVs by the front door and windows – and within inches – of the house at “The Willows”. We consider that the case should be reconsidered by a different TC or DTC who should make a site visit and consider all legitimate evidence, if necessary at a public inquiry.

Frances Burton
	Judge of the Upper Tribunal
	20 May 2011