Neutral Citation Number: [2010] UKUT 60 (AAC)

Appeal No. T/2009/510
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Richard Macfarlane
Deputy Traffic Commissioner for the 
Scottish Traffic Area Dated 15 September 2009

Before:
Frances Burton, Judge of the Upper Tribunal
Patricia Steel, Member of the Upper Tribunal
George Inch, Member of the Upper Tribunal

Appellant:
			MARGARET McKINDLESS
			T/A McKINDLESS EXPRESS COACHES

	 
Attendances:

For the Appellant:          Gary McAteer

Heard at:	The Eagle Building, 215 Bothwell Street, Glasgow G2 7EZ
Date of hearing:	22 January 2010
Date of decision:	19 February 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED.

REASONS FOR DECISION

1.	This was an appeal against the Decision of the Deputy Traffic Commissioner for the Scottish Traffic Area dated 15 September 2009 when he determined that the Appellant should pay a penalty of £12,000 (£200 x 60 vehicles) to Scottish Ministry by Wednesday 7 October 2009, pursuant to s.39 of the Transport (Scotland) Act 2001 following a contravention of s.6 of the Transport Act 1985.
2.	The factual background appears from the documents, the transcript of the public inquiry and the Decision letter of the Traffic Commissioner’s office and is as follows.
(i)	The Appellant was granted a standard national public service vehicle licence on 17 January 1991, and had had authorisation for 60 vehicles since May 2000 with 60 discs, to be operated from 101 Main Street, Newmans, Bogside, Wishaw ML2 9BG. At the date of the public inquiry The operator had 7 registered services, and had had 2 warning letters (for bus monitoring in April 2003, August 2004, January 2006 and October 2007 and maintenance in March 2008) plus 2 public inquiries (June 2005, for bus monitoring and maintenance – no action taken) and January 2006 (warning for maintenance).
(ii)	A Bus Compliance Report was submitted by Gareth Ainge, Bus Compliance Officer of the Vehicle and Operator Services Agency, detailing the monitoring of local service registration PM0001720/10 (service X1/X2) for a period of 9 days between 22 December 2008 and 11 February 2009. The Appellant had been sent a letter on 13 February 2009 inviting comments on the monitoring exercise and had sent a written response received on 27 February 2009. A public inquiry was called for the Traffic Commissioner to consider whether to exercise her powers under ss.17(1) and 17(2) of the Public Passenger Vehicles Act 1981, as amended, to revoke, suspend or vary any condition attached to the licence or attach any additional condition and also to consider s.17(3)(aa) (failure to fulfil undertakings, and s.26(1)(a) (failure to operate a local service). The public inquiry was called to take place on Monday 27 July 2009 at 2 pm at the Traffic Area Office in Edinburgh. However the it eventually opened on 9 September 2009 before the Deputy Traffic Commissioner. The Appellant was represented by Mr Gary McAteer of Beltrami & Co, Solicitors. Mr Gareth Ainge and Mr Alexander McKellar, Bus Compliance Officers, represented VOSA. A statement from Bus Compliance Officer Mrs Katrina Cuzier was also put in evidence, together with a statement of Mr Ainge. They had monitored X1 and X2 and had encountered some road works on 22 December 2008 but not so that any hindrance would have been caused to the routes. However Mr McAteer had obtained details of road closures and new traffic signals and carriageway widening works from 9 February to 8 March 2009, although the Deputy Traffic Commissioner had information that this was up to 28th February 2009 only. Evidence was also given by Mr Napier, the Appellant’s Transport Manager, that a significant contributory cause of the fact that buses were not running to schedule was problems with the Wayfarer ticket machines in which the clocks were found to have inaccuracies of up to three minutes.  These machines were due to be replaced by updated ticket machines but in the meantime the maintenance company had gone into liquidation in use, causing obvious problems. This combined with the severe congestion caused by the road works, which was well documented in the press, had resulted in drivers attempting to compensate, in some cases to the benefit of passengers, by leaving slightly early, and one driver had left the routes altogether.
(iii)	Mr Ainge also gave evidence that there was no monitoring at peak times as this would not have been fair. Nevertheless Mr McAteer conceded that Mr Ainge’s report disclosed that almost 53 journeys out of 100 were outside tolerance times, almost 43% unsatisfactory timekeeping of which 28 were for early running. He maintained that there was a reasonable excuse in the congestion caused by the road works, of which there was independent press report, and the problems with the ticket machines. However the Deputy Traffic Commissioner, who gave an oral decision, found that the registered routes had not been serviced and that a reasonable excuse had not been advanced. He took the view that Mr McAteer had provided an explanation but that that was not an excuse, although he noted the difficulties with the Wayfarers’ clocks. He took no further action against the licence by way of conditions but did impose the penalty mentioned in paragraph 1 above, making a point of selecting a figure of £200 which he said was not “anywhere near” the maximum penalty of £550 per vehicle.
3.	At the hearing of the appeal before us the Appellant was again represented by Mr McAteer. The appeal was on the grounds that the Deputy Traffic Commissioner had not given due regard to the facts and circumstances presented to him, in particular to the extent to which traffic congestion impacted on the service provision, nor to the explanation provided by Mr McAteer at the public inquiry, including the problems with the ticketing machines, in particular that the company responsible for their maintenance had gone into liquidation. The Appellant also appealed on the grounds that the monetary penalty was excessive, having regard to the explanations provided.
4.	Mr McAteer submitted that the appeal was against both the penalty itself and the quantum. He said that the Deputy Traffic Commissioner had accepted Mr Napier’s evidence. He relied on the Ribble case for the law and accepted that it was not for the Deputy Traffic Commissioner to pursue every possible explanation, but in the present case there were only two and they were very clear reasonable excuses for the failure to run to time. He said there had been very limited early running due to the drivers’ efforts to keep to the timetable owing to the congestion caused by the road works, but this very slight early running had been compounded by the inaccurate Wayfarer clocks. He submitted that this showed good intentions: it was no random chaotic failure but met the test of reasonable excuse.  He contended that the Deputy Traffic Commissioner should have taken the view that a window of tolerance could be allowed for the combined congestion and faulty Wayfarer machines. If the Wayfarer had been working correctly the services would have been within the window of tolerance. He said that if this approach had been taken the services would have mostly been within the usual window of tolerance even if leaving early, with about a 10% non-performance.
5.	We agreed with Mr McAteer’s submissions. The Deputy Traffic Commissioner had given the Appellant some credit for his mitigation at the public inquiry, as was clear from the transcript, but it appeared to us that he had not taken into account that the discrepancies had been revealed only by random monitoring, not by any complaints from the public. It was also clear from the transcript that the company had immediately investigated the position upon discovering the Wayfarer problem and had taken the results of the monitoring very much to heart. We were therefore of the view that the Deputy Traffic Commissioner should have given greater weight to the Appellant’s explanations and found that there was reasonable excuse established. There should have been no penalty therefore, as there had been no material failure to operate (save for the 4 journeys by the driver who had deviated from the route in order to arrive at the terminus earlier) and a relatively low percentage of journeys operating slightly outside the Traffic Commissioners’ window of tolerance of 1 minute early and 5 minutes late.
6.	Accordingly the appeal is allowed.

Frances Burton
Judge of the Upper Tribunal
19 February 2010