Neutral Citation Number: [2012] UKUT 453 (AAC)                              Appeal No: T/2012/58

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF MILES DORRINGTON, 
DEPUTY TRAFFIC COMMISSIONER for the WESTERN TRAFFIC AREA, 
DATED 20 AUGUST 2012

Before:
Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.
Stuart James, Member of the Upper Tribunal.
John Robinson, Member of the Upper Tribunal.

Appellant:
ALAN KNIGHT TRANSPORT B.V.
ALAN MICHAEL KNIGHT

Attendance:
For Mr Knight: 	Mr Locke, Solicitor.

Appeal heard at: 	Victory House, Kingsway, London
Date of hearing: 	19 November 2012
Date of decision: 	4 December 2012

DECISION OF THE UPPER TRIBUNAL:

IT IS HEREBY ORDERED that the appeal be struck out because
the tribunal does not have jurisdiction to hear this appeal.

Subject matter:	
Impounding. Right of appeal to the Upper Tribunal.

Cases referred to:
None

REASONS FOR DECISION:

1)	On 20 August 2012 the Deputy Traffic Commissioner for the Western Traffic Area decided that Alan Knight Transport BV, a Dutch company, had applied for the return of vehicle BT-RB-47 but that the company was not the owner of the impounded vehicle and, therefore, could not seek its return under Paragraph 10(1) of the Goods Vehicles (Enforcement Powers) Regulations 2001 as amended by the Goods Vehicles (Enforcement Powers) (Amendment) Regulations 2009. Those amendments came into force on 1 October 2009. The Deputy Traffic Commissioner also decided that the true owner of the vehicle was Mr A. Knight (in his individual capacity) but that he had not made an application for the return of the vehicle.

2)	The factual background to this appeal appears from the documents, the transcript and the Deputy Traffic Commissioner’s decision and is as follows:
(i)	Vehicle BT-RB-47 was detained on 3 July 2012 under Regulation 3 of the 2001 Regulations, as amended. It was found by the Deputy Traffic Commissioner, and agreed by both Alan Knight Transport BV, and Mr Alan Knight (a Director of the Company) that the vehicle was owned by Mr Knight in his individual capacity, and had been hired to Alan Knight Transport BV. It was also agreed, and found by the Deputy Traffic Commissioner, that the vehicle was being used on a road in contravention of Section 2 of the Goods Vehicles (Licensing of Operators) Act 1995.
(ii)	An application for the return of the vehicle dated 23 July 2012 was made to the Traffic Commissioner using a standard form. VOSA, wrongly believing the company to be the owner of the vehicle, had previously sent the required Regulation 9 Notices to Alan Knight Transport BV – Mr Knight having failed to take advantage of the opportunity of an interview  on 3 July 2012 to spell out the true position regarding ownership.
(iii)	The subsequent application to the Traffic Commissioner was made by Mr Greve, the Transport Manager of Alan Knight Transport BV. The GV500 application form was signed by Mr Greve himself and endorsed with the company stamp.
(iv)	In the covering letter Mr Greve wrote  “… I am not the owner of the vehicle and I have filled in this form in on behalf of the owner of the vehicle”.
(v)	In the form itself, in answer to the question: “If you own the vehicle as an individual, please complete the following….” - the answer given was  “Knight, Alan Michael (Dir)”
(vi)	In answer to the following question: “If the vehicle is owned by a partnership, company or unincorporated body, please complete the following …” - the details of Alan Knight Transport BV, including the address of the company and the name of its Transport Manager, were given.
(vii)	The company’s rubber stamp was used in both the ‘Ownership’ section, and the ‘Declaration’ section of the form. The address of the applicant provided on the form was also the address of the Dutch company, and the form was signed by Mr Greve, apparently on behalf of the company.  At no point in the documentation was Mr Knight as an individual, rather than as a director of the company, named as the owner of the vehicle. The totality of the documentation gave the strong impression that the Transport Manager was applying on behalf of the company, whose rubber stamp, director and address details appear on the application form.
(viii)	At the hearing before the Deputy Traffic Commissioner, Mr Knight and the company’s Transport Manager were present, together with a Traffic Examiner and Senior Traffic Examiner. The court clerk introduced the case stating: “Sir, you have before you Alan Knight Transport BV who is applying for the release of vehicle BT RB 47”. Nobody present disagreed with this. Indeed, before the Deputy Traffic Commissioner there was no suggestion that, despite appearances to the contrary, the true applicant had been Mr Knight in his personal capacity or that the Transport Manager or the Dutch company had applied on Mr Knight’s behalf.
(ix)	At an early stage Mr Knight told the Deputy Traffic Commissioner that the vehicle actually belonged to him as an individual, which prompted the Deputy Traffic Commissioner to ask Mr Knight why he had not made the application personally. Mr Knight said that he thought it was fair for the company to make the application, which led to the following exchange:
DTC: Right. But the application has been made by BV?
Mr Knight: By the BV for the truck back, yes.
(x)	The Deputy Traffic Commissioner went on to explain that only the owner of the vehicle could make an application for its return, and it was clear that the company had made the application, not least because the address given on the application form was the company’s address in Holland. Mr Knight agreed that this was so, and accepted that his own personal business was based in England.
(xi)	In due course the Deputy Traffic Commissioner confirmed his view that Mr Knight had not, personally, applied for the vehicle to be returned because the application form had all of the Dutch company details upon it, and it was signed by the company Transport Manager on behalf of the company and had the company’s rubber stamp on it. Whilst Mr Knight was named as an applicant, it was in his capacity as a director of the company and not as an individual, and he was not the person who had made the application.
(xii)	Despite all this, the Deputy Traffic Commissioner went on to examine the merits (or otherwise) of Mr Knight’s personal position and purported to reach conclusions that, having found that Mr Knight had not made an application in his personal capacity, could be of no legal consequence.
(xiii)	After the Deputy Traffic Commissioner had given his ex tempore decision, Mr Knight asked if there was a chance that he might apply as an individual. 
(xiv)	The Notice of Appeal to the tribunal is made in the name of Mr Knight personally and the sole ground of appeal is:
“The decision of the Deputy Traffic Commissioner not to return vehicle BT RB 47 to the appellant/owner was unreasonable and unjustified in the circumstances.”

3)	At the hearing of this appeal, the Mr Knight was represented by Mr R Locke, who submitted a skeleton argument for which we were grateful.  The first point made was that the Deputy Traffic Commissioner had been wrong to find that the application before him had been made by the company and not by Mr Knight personally. There was, submitted Mr Locke, some ambiguity in relation to the application form to the Traffic Commissioner that, he said, could reasonably be regarded as an application from Mr Knight in his personal capacity, notwithstanding the contents of the application form read as a whole, and all that had been said at the hearing. Mr Locke suggested that the company, or its Transport Manager, might properly be regarded as having applied on behalf of Mr Knight in his personal capacity.

4)	We decided that this matter was something upon which the tribunal should form, and indicate, an early view because, on the agreed facts in relation to ownership, the true identity of the original applicant might affect the Deputy Traffic Commissioner’s jurisdiction (and, indeed, our jurisdiction) and should be decided as a preliminary matter.

5)	Regulation 10 of the 2001 Regulations provides that the owner of a vehicle detained in accordance with Regulation 3 may apply to the Traffic Commissioner for the return of the vehicle. An application must specify which grounds within Regulation 4(3) apply – one of which, namely 4(3)(c), is that although at the time the vehicle was detained it was being, or had been, used in contravention of S.2 of the 1995 Act, the owner did not know that it was being, or had been, so used.

6)	It has been long accepted that, first, it is for VOSA to show that they had reason to believe that the detained vehicle was being, or had been, used on a road in contravention of S.2 of the 1995 Act. The standard of proof is the balance of probability. In this case there was no challenge to VOSA’s right to detain the goods vehicle, which was carrying goods on the road in connection with the user’s trade or business, but which was not being operated under the authority of a valid operator’s licence.

7)	Where, as here, use in contravention of S.2 has been accepted, the burden of proof then shifts to the alleged owner to establish ownership on the balance of probability, and then to establish, to the same standard, one of the grounds set out in Regulation 4(3) of the 2001 Regulations (as amended) for the return of the vehicle. For these reasons, and because Regulation 10 provides no right of application except to the owner of the detained vehicle, it is our view that only the owner may apply for the return of an impounded vehicle. Consequently, where there is doubt, the identity of an applicant needs to be clearly established because if the applicant is not the owner, the Traffic Commissioner has no jurisdiction to consider a claim for return of the vehicle to the applicant.

8)	Regulation 13 provides that an appeal may be made to the Upper Tribunal against a determination of the Traffic Commissioner. We find, as a matter of law, that a person or other entity cannot derive a right of appeal under Regulation 13 if they were not a valid party in the proceedings before the Traffic Commissioner. If ownership is in dispute, an adverse finding by the Traffic Commissioner as to ownership may be appealed to the Upper Tribunal if the appellant made the application to the Traffic Commissioner and asserted ownership before the Traffic Commissioner. But where a person or company asserts or accepts that they were not the owner then, in our judgment, they may not apply to the Traffic Commissioner on their own behalf, and they may not appeal to the Upper Tribunal under Regulation 13.

9)	In the present case, Alan Knight Transport BV accepted that it was not the owner of the vehicle. Before the Deputy Traffic Commissioner there was no suggestion that, despite appearances to the contrary, the true applicant had been Mr Knight in his personal capacity or that the Transport Manager or Alan Knight Transport BV had applied on behalf of Mr Knight as an individual. Indeed, after the Deputy Traffic Commissioner had given his ex tempore decision, Mr Knight asked if there was a chance that he might be permitted to apply as an individual.

10)	Having looked at the application form for ourselves, and read the transcript carefully, we conclude that Alan Knight Transport BV was the only entity to apply to the Traffic Commissioner for the return of the vehicle. This was the finding of the Deputy Traffic Commissioner and we find no good reason to take a different view. Indeed, in our judgment, no other interpretation is sustainable. That being so, we think it unwise to deal with the merits, if any, of Mr Knight’s personal position in relation to any of the grounds set out in Regulation 4(3).

11)	It follows that Alan Knight Transport BV, which accepts that it was not the true owner of the vehicle but was merely the hirer, had no right to apply to the Traffic Commissioner for the return of the vehicle and, therefore has no right of appeal to the tribunal. It also follows that Mr Knight as an individual, as owner of the vehicle, has no standing before us, as he was not a party to the proceedings below, and has not made a valid application to the Traffic Commissioner.

									 
Judge Mark Hinchliffe, DCP
4 December 2012