Appeal No. T/2015/38

IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Joan Aitken
TRAFFIC COMMISSIONER for Scotland

Dated: 4 June 2015

Before:		A J Gamble		Judge of the Upper Tribunal
			G Inch			Member of the Upper Tribunal
			D Rawsthorn		Member of the Upper Tribunal

Appellant:		SKIP  IT  SKIPS  LIMITED

Attendances:		Mr G McAteer, Solicitor, Beltrami and Co Limited

Heard at:		George House, 126 George Street, Edinburgh EH2 4HH
Date of Hearing:	29 September 2015
Date of Decision:	15 October 2015

DECISION OF THE UPPER TRIBUNAL

The appeal is allowed.  The decision of the Traffic Commissioner for Scotland dated 4 June 2015 is set aside.  

The case is remitted for re-determination entirely afresh and at large by any Traffic Commissioner or Deputy Traffic Commissioner. 

The appellant company’s operating licence is suspended from 19 June 2015 until re-determination of the case. 

Subject Matter:  Notification of Change of Directorship, Shareholding and Operating Centre

Cases referred to:	None

REASONS  FOR  DECISION

1.	This is an appeal from the decision of the Traffic Commissioner for Scotland dated 4 June 2015. 

2.	An oral hearing of the appeal took place on 29 September 2015 when the appellant company was represented by Mr G McAteer, Solicitor.  We are grateful to him for his helpful submissions.  

3.	The facts and circumstances relating to the appeal appear from the documents on file and the Traffic Commissioner’s decision.  They are as follows:

(i)	Skip It Skips Limited (the company) was granted a Standard  National Operators Licence on 10 June 2012 with authorisation to operate two vehicles from an operating centre at Gatend Farm, Barrmill, Beith, Ayrshire.  The sole director of the company was Martin McLaughlin.  The Transport Manager was James R Brown. Miss Zoe Young (who is apparently Mr McLaughlin’s partner) was given as a contact person with an address in Kilwinning, Ayrshire.  

(ii)	On 21 September 2014 the company lodged a variation application seeking to increase its authorisation from two vehicles to four.  The application form was signed by Ms Michelle Donaldson, describing herself as “Director” and giving 22 Green Road, Paisley as both her correspondence address and the address of the establishment.  The above address is Ms Donaldson’s home address. 

(iii)	Ms Donaldson became the sole director of the company on or about 18 April 2013 when Mr McLaughlin resigned as a director.  On 30 April 2013 all of the company’s shares were transferred to her.  No explicit notification on an official form was made to the Traffic Commissioner’s Office of those changes in the company’s directors and its shareholding.  

(iv)	However on 13 May 2013 a form was submitted to the Traffic Commissioner’s Office nominating Eric Reid as Transport Manager.  That form was signed by Ms Donaldson as “Director” of the company. That form identified the operating centre as “54 Carmichael Street, Govan, Glasgow”.  

(v)	No official form explicitly declaring the change of operating centre was ever lodged with the Traffic Commissioner’s Office.  

(vi)	On 5 November 2013 a form was submitted applying to change the type of operator’s licence held by the company from Standard National to Restricted.  That form was signed by Ms Donaldson as “Director”.  In it she identified the operating centre as “54 Carmichael Street, Govan, Glasgow”. 

(vii)	Between April 2013 and June 2015 the company used 54 Carmichael Street, Govan, Glasgow as its effective operating centre.  It never used the operating centre at Gatend Farm which appeared on their Operator’s Licence. 
(viii)	Ms Donaldson had previously run a catering business which she operated under the business name “Classy Snacks Michelle Donaldson”.  She held an operator’s licence in respect of that business which apparently expired in 2007 – 2008.

(ix)	A public inquiry took place on 12 November 2014 before the Traffic Commissioner for Scotland in regard to the company’s licence.  

(x)	On 25 November 2014 Ms Donaldson withdrew the company’s application dated 21 September 2014 referred to in sub-paragraph (ii) above.  

4.	By her decision the Traffic Commissioner revoked the company’s operators licence with effect from 19 June 2015.  In doing so she expressed herself thus:

	“23.	Given her email to Leeds and what she told me at the Public Inquiry especially in relation to the material change which includes cessation of use of 
			the only authorised operating centre I have no option but to revoke this licence which I now do in terms of section 26(1) of the Goods Vehicles (Licensing of Operators) Act 1995.  It is a fundamental requirement that an operator has an authorised operating centre at which the vehicles are normally kept and Ms Donaldson, who was not new to operator licensing, does not have such for the licence despite becoming director and shareholding of the company which holds the licence in April 2013, that is over 2 years ago.  My order will come into effect at 23.59 on 19 June 2015.”

5.	Mr McAteer advanced as his primary submission that the Traffic Commissioner’s decision was disproportionate.  He emphasised that she had made no finding of deception or other dishonesty on the part of Ms Donaldson.  We consider that she had, in any event, no ground in the evidence before her  to make such a finding.  We agree with Mr McAteer that the failures of Ms Donaldson in this case amounted to neglect.  They did not involve deliberate deception.  We accept that she failed to notify the Traffic Commissioner explicitly in the precisely required form of the changes to the directorship and shareholding of the company and in its operating centre.  However, and in our view this is crucial, she did implicitly draw to the Traffic Commissioner’s attention by the use of official forms that she had become a director of the company and that the operating centre had been changed from the address in Barrmill to the one in Govan.  We refer to documents 26, 45, 49 and 51 – all forms submitted to the Traffic Commissioner’s Office on 21 September 2014, 13 May 2013 and 5 November 2013 respectively, all as narrated in paragraph 2 above.  Under section 26(1) of the Goods, Vehicles (Licensing of Operators) Act 1995 the Traffic Commissioner had a discretion to revoke, suspend or curtail an operator’s licence if a place had been “used as an operating centre” when it was not specified as such in that licence and also when there had been “a material change in any of the circumstances of the licence holder that were relevant to the issue or variation of the licence” since the licence was issued.   Given that other options apart from revocation were open to her in the exercise of a discretion and that her office had been made aware by the use of official forms of the effective change of the operating centre and of the change in the directorship of the company we are satisfied that Mr McAteer’s submission is correct and that the decision on the part of the Traffic Commissioner to revoke the operator’s licence was disproportionate. That is so even taking into account that Ms Donaldson had previously (and briefly) held an operators licence in regard to another business.

6.	We also accept Mr McAteer’s secondary submission that the reasoning of the Traffic Commissioner in support of her decision was inadequate in that she did not spell out why she had chosen to revoke the operator’s licence in preference to using any of the less draconian powers conferred on her by section 26(1) of the above Act. 

7.	We consider that in the two respects specified in paragraphs 5 and  6 above the Traffic Commissioner materially erred in law.  We exercise our discretion in favour of the appellant company and set her decision aside on the basis of those errors. 

8.	The question of disposal therefore arises.  We accept Mr McAteer’s submission that the period of revocation which has run since the Traffic Commissioner’s decision should be treated as a suspension until the case is re-determined.  We hold that the re-determination should be carried out by any Traffic Commissioner or Deputy Traffic Commissioner after another public inquiry.  We remit the case for such an inquiry to take place and for it to be re-determined thereafter.  That inquiry and re-determination should be entirely afresh and at large. 

	(Signed)
	A J GAMBLE
	Judge of the Upper Tribunal
	Date: 15 October 2015