Neutral Citation Number: [2011] UKUT 134 (AAC)
Appeal No.  T/2010/74
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Mary Kane
Deputy Traffic Commissioner for the 
South Eastern & Metropolitan Traffic Area 
Dated 8 September 2010

Before:
Frances Burton, Judge of the Upper Tribunal
Patricia Steel, Member of the Upper Tribunal
David Yeomans, Member of the Upper Tribunal

Appellant:
			HIGH VOLTAGE MAINTENANCE SYSTEMS LIMITED

	 
Attendances:
For the Appellant:         Jim Marsh of AITAC Consultancy

Heard at:	Victory Houses
Date of hearing:	25 February 2011
Date of decision:	24 March 2011

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED in part and the conditions attached to the licence be amended to omit reference to the maximum weight of the authorised vehicle to 18 tonnes, and to substitute a condition that only a rigid vehicle should be used; and to remove the time restrictions on weekday movement of vehicles save that on Saturdays, Sundays and Bank and Public Holidays the restrictions shall remain as ordered by the Deputy Traffic Commissioner.

REASONS FOR DECISION

1.	This was an appeal against the Decision of the Deputy Traffic Commissioner for the South Eastern and Metropolitan Traffic Area dated 8 September 2010 when she confirmed her provisional Decision, dated 8 July 2010, refusing the Appellant Company’s application “to vary the conditions and undertakings accepted at the public inquiry on 15 June 2010” and confirming her written decision of 8 July 2010, in which she proposed to grant a restricted operator’s licence for one vehicle at an additional operating centre at D.J. Haulage Yard, Peeks Brook Lane, Horley, RH6 9ST, subject to conditions and undertakings.
2.	The factual background appears from the documents, the transcript of the public inquiry and the written Decisions of the Deputy Traffic Commissioner, and is as follows.
(i)	The Appellant Company was called to public inquiry in relation to its existing restricted licence authorising 7 vehicles and 3 trailers at a further operating centre where it wished to use another vehicle. The proposed second operating centre was already used by other operators: D.J. Haulage Limited was authorised for 9 vehicles there, subject to conditions relating to times for loading, unloading and operating. Two other operators had made applications to use the same operating centre but these had been withdrawn before the public inquiry. The Appellant’s other (original) operating centre is in Dartford, Kent, the application for which had been granted in 2009.
(ii)	In September 2009 the Appellants made an application to vary their licence by adding two further Operating Centre, these being at The Interchange, Wested Lane, Swanley and at the premises of DJ Haulage Yard, Peeks Brook Lane, Horley, Surrey which is the subject of this appeal.
(iii)	Opposition to the new application was received from Surrey County Council and 2 representations had been received from local residents, which had, however, been received out of time and had not been copied to the operator. The Council’s letter of objection, dated 28 September 2009, related to unsocial hours, an increase in dust and noise on the site, mud being carried out onto the public highway and damage to the verges, and also to the fact that Peeks Brooks Lane was an unlit single carriageway with no footpaths and restricted width, so that simultaneous entry and exit of 2 large vehicles was not possible. The local residents complained that the statutory advertisement in the Crawley Observer had not been seen as it was not a local newspaper, and also advanced grounds of objection similar to the Council’s.
(iv)	There had been a visit by a VOSA Traffic Examiner on 14 September 2009 in respect of one of the 2 other applications which had been made to use the site (but which had since been withdrawn). At that time the TE had confirmed that the site was suitable for 1 extra vehicle, albeit with some reservations. The Appellant’s application was originally refused by the Traffic Commissioner on 12 January 2010.  This was after the Traffic Commissioner had notified the Appellant that he was minded to refuse it because the newspaper used for the advertisement did not, apparently, circulate in the area. However the operator had then responded, providing copies of emails that had been sent to the Central Licensing Office in December 2009, containing evidence that the newspaper did circulate in the Horley area where the proposed operating centre was situated. The Traffic Commissioner had then reviewed his decision and advised the Council and the representors that he was minded to grant the application, subject to similar conditions as those already imposed on the existing licence of D.J. Haulage Limited. The Appellant indicated that this was acceptable but the Council and the representors did not accept this resolution of the matter, and the application was therefore referred to public inquiry which took place on 15 June 2010 at Dorking, Surrey: in the meantime an interim licence was granted for 1 vehicle.
(v)	Prior to the public inquiry the DTC was notified of the previous history of the site: no opposition had been received on D.J. Haulage’s original application in February 2003, but, when a further application was received in May 2003, the operating centre had been considered at public inquiry. D.J. Haulage’s licence was also reviewed and the conditions now on their licence imposed. These were that records of the                                              authorised vehicles shall enter and leave the Operating Centre in forward gear, that authorised vehicles shall not be loaded or unloaded except between 0800 and 1930 hours Monday to Friday and and 0800 and 1300 hours on Saturday with no loading or unloading on Sundays or Bank or Public Holidays except in cases of emergency, and that records of the vehicle movements shall be kept and made available to the Traffic Commissioner on request. The DTC had also visited the site in daylight before the public inquiry of 15 June 2010.
(vi)	At the public inquiry of 15 June 2010 the Appellant Company was represented by Mr Jim Marsh of the AITAC Consultancy, and Mr Andrew Pierce, Director, and Mr Jeffrey Addley, fleet manager attended. Mr David Gallen, the owner of the site, also attended as a witness for the Appellant Company. Traffic Examiner Liam Browne attended for VOSA, and Mrs Caroline Smith represented Surrey County Council, with Mrs Angela Goddard, Transportation Development Officer, who was a witness. The representors were Mr and Mrs King and Mr and Mrs Morrall. A Mrs Kemp and Mr and Mrs Lamond, who were representors in the case of one of the earlier applications which had been withdrawn, also attended. Mr Marsh had indicated that he had no objection to evidence being given by any of them.
(vii)	The evidence of the Traffic Examiner was that he had not returned to the site since September 2009 at which time the surfacing had been mainly dust, but accepted Mr Marsh’s assurance that two thirds of the site had since been drained and concreted and that it was planned to do this over the whole surface. He agreed that this would address his concerns that dust and debris would be carried onto the public road, which he accepted had also been resurfaced. However he was unable to comment as to whether this would prevent damage to verges, but asserted that nothing could change the fact that the road was unlit, without footpaths, it was narrow with small verges and there would be environmental impact on the area if the application was granted. Nevertheless he conceded that if the whole site had been cleared there would be space for 3 vehicles, although he also confirmed that the Kings’ house was only 30-40 metres from the yard and that they would be affected by noise and dust.
(viii)	For the Council, Mrs Smith submitted that there was a Certificate of Lawful Use dating from 2002 which allowed 2 workshops, the use of the buildings for car repairs and of the open yard for parking of cars and vans in connection with the business of car repairs: also for storage of topsoil and other materials, in connection with a building contractors and plant hire business run by the occupier of a neighbouring house called Ellerton on a site abutting the road. She confirmed that no other business could use the site under the Certificate and that Enforcement Officers would take action if necessary. She said that the Council had received complaints about noise and unsocial movements, but not specifically on environmental grounds. However conditions on the existing licences had not always been complied with: on the morning of the public inquiry the Appellant had been loading at 6.40 am and D.J. Haulage at 7.10 am. The Council was concerned about dirt, dust, damaged verges, unsafe entry and exit of vehicles and probable intimidation of pedestrians, cyclists and riders on the road.
(ix)	The evidence of Mrs Goddard had addressed the restricted width of the road, damage to the verges and highway, vulnerability of pedestrians, cyclists and riders and the environmental impact of noise, fumes and vibration from the site. Her concerns about entry and exit of vehicles were not related to the bellmouth of the site but to the width of the road, which was subject to a 30 mph speed limit.  She added that the erection of a 20 mph sign by the site owner was illegal and would have to be removed. She said that complaints had been made to VOSA’s Regional Intelligence Unit but had not been responded to. In cross-examination by Mr Marsh, Mrs Goddard said that she had seen vehicles swing so far out on exit from the site that verges were damaged and that large vehicles would take up most of the road which would be intimidating. She believed that large vehicles caused the majority of damage to verges. She agreed that concrete surfaces would reduce the dust and muck, and that a wheel washing facility would also help. She was not concerned about space at the site but as to whether it was suitable as an operating centre. She accepted that the existing storage and smaller vehicle use could not be controlled but said that (while if the application was granted there would be some control) she was concerned about the environmental effect on the residents of the road – Peeks Brook Lane, which was manifestly adversely affected.
(x)	For the operator, Mr Pierce gave evidence that he was using one 18 tonne vehicle but needed two more vehicles, probably another of 18 tonnes and a 7.5 tonne vehicle. He required no trailers and accepted that the vehicles should be rigid only. He could accept hours conditions, except in emergencies, but realised that any hours conditions would not apply to other vehicles at the site such as vans. He said at present the site was used for loading as it was a storage depot, and noise only occurred when using the fork lift truck or picking up vehicles, but that there was already substantial noise nuisance from the M23 and Gatwick Airport. He particularly needed the site to store an HIAB vehicle which could not be kept at the Kent site as the driver lived nearer Horley. He had permission to park 3 vehicles but he said there was space for 3 more. He considered that the configuration of the road could be managed by careful drivers, and that although the business was a 24 hour operation he could manage the hours restrictions. He accepted that he personally did not visit the site often but said that Mr Addley would know how to manage with the hours limitations. He accepted that there were many more vehicles used by his company that would visit the site (about 45 in fact) as well as the authorised vehicles, and that the restrictions would only apply to the authorised vehicles on the licence, but said he would do his best to control unsocial use, although technically those other vehicles could load and operate around the clock. He added that even if the operating centre was not granted the HIAB would have to visit to collect equipment.
(xi)	This evidence was followed by Mr Addley’s. He was the fleet manager, who said he only visited the site about twice a month during daylight. He said he would give various written instructions about the suppression of noise in the restricted hours to his drivers,  including: no running engines when vehicles were stationary, not reversing round the yard, not speeding on the road, and complying with timings, though he accepted that the smaller vehicles, i.e. vans, could work outside these times. He confirmed that the Swanley depot was only for storage and could not park large vehicles.
(xii)	Mr Gallen gave evidence that he was the Director and Transport Manager for D.J. Haulage. He lived in Dorset but spent the week at the site in a caravan. He owned the house mentioned (Ellerton) as well as the yard, but had let the house to a residential tenant. He confirmed that he had received planning permission from Tandridge District Council to resurface the yard and erect the workshops. He said he slept on site 3-4 nights per week and was never woken by noise, so he did not think noise from the Appellant’s operation would be intrusive. He had never received any complaint about the yard except for its untidiness, which had all changed, and he had no knowledge of any enforcement plans. He agreed that he had let other operators store vehicles at the yard even though they were not authorised, and that one had been a 44 tonne truck. He confirmed that his company had authorisation for 9 vehicles but used 6. He did not know that one of his lorries had loaded at 7.10 am that morning.
(xiii)	Mr King spoke for all the representors. He said he was fed up at being woken at 5 am and then constantly until 8 am by noise from the site, at weekends as well as during the week. He could see into the site from his house and saw vehicles moving, the noise was different from the motorway and aircraft. He was concerned that 3 extra vehicles would increase the noise. Prior to Mr Gallen’s arrival the site had been used for car storage, generating limited noise at limited times. Apart from Mr King, who lived close by, the other representors were concerned primarily with environmental damage caused by heavy traffic as they lived further away. Mrs Smith for the Council supported all these points and asked for the application to be refused.
(xiv)	In the circumstances the DTC considered there was a demanding balancing act necessary but concluded that the application could be allowed provided conditions were attached to the licence, imposing the same time restrictions as for D.J. Haulage, except that in addition she restricted movement. She added that the undertakings Mr Pierce said he would be able to give about enforcement of provisions to control noise were also attached and that no vehicle of greater weight than 18 tonnes was used. In accordance with s.23 of the Goods Vehicle (Licensing of Operators) Act 1995 she invited representations from all parties by 4 August 2010. This resulted in an email from the Council dated 16 July 2010 maintaining their position that the site was unsuitable and a letter dated 20 July from Mr Marsh expressing concern at the weekday restrictions, but agreed to those proposed for the weekend, agreed to the condition that vehicles should enter and exit in forward gear only, and to the undertakings to be recorded on the licence. However they said they could not agree to a limit of 18 tonnes on their vehicles and although they currently operated 1 such vehicle they had in fact offered only to restrict their vehicles to the rigid type since they might need a vehicle of greater weight than 18 tonnes at some time. 
(xv)	Mr King wrote on 2 August 2010 maintaining the representors’ position and informing the DTC that the Appellant’s crane had been in use for loading at 7.20 am that morning in contravention of the hours conditions just imposed. Mr Marsh responded by letter of 3 September 2010 explaining that the crane had not been in use for loading at that time, and indeed that no unauthorised loading or unloading had taken place outside the permitted hours set out on the licence, but that it was conceded the vehicle had been started and its crane operated only to move it from its overnight position to one from which it could be driven out onto the road, and that this had been done before 8 am (when it was permitted to be loaded) because thefts had resulted in its having to be kept overnight in such a position as to prevent access to its large toolbox.
(xvi)	Following these representations the DTC refused the application to vary the conditions in her final Decision dated 8 September 2010.
3.	At the hearing of the appeal the Appellant company was again represented by Mr Marsh. The thrust of his argument was that the Appellant company had only ever agreed to run solely rigid vehicles from the site, without any weight restriction as they might on occasion need a bigger vehicle than one of 18 tonnes. He added that he had made representations to this effect upon receipt of the DTC’s draft Decision inviting comments. He said the Appellant company needed the flexibility of using a 24 or 32 tonne vehicle. He added that such a vehicle would be the same width and only slightly longer, although with additional axles, However although he had emphasised the adverse effect of being restricted to 18 tonnes in his representations, the DTC obviously had not taken account of them or given them “special consideration” as required by the section. He added that though they had agreed at the public inquiry to the hours conditions they really wanted a conditions free licence. He emphasised that the site was beside a really noisy road near Gatwick, and that a lot of the noise would be made by others, though the Appellant company would try to keep loading times to the permitted hours. He said the Appellant also needed to move outside the restricted hours. although he accepted the loading times must remain.
4.	We concluded that there had been a misunderstanding between the DTC and the Appellant’s representatives, as it was clear from the transcript that Mr Pierce had only said he had an 18 tonne vehicle, not that that was the largest he needed. We were surprised by the restriction as there would be little difference between vehicles of different weights (except some extra length) although significant difference between a rigid vehicle (which she had not recorded as offered by the Appellant) and articulated vehicles. We were unable to see the proposed benefit in restricting the vehicle to 18 tonnes.  Accordingly we allow the appeal on this point and remove the weight restriction on this one vehicle. 
5.	We understood the DTC’s wish to reduce the environmental noise nuisance to nearby residents but were also unable to see the benefit in restricting movement, given that other vehicles were going to and from the site all the time, although the restrictions on loading and unloading made perfect sense, given the noise at unsocial hours mentioned by the Council and Mr King.
6.	Accordingly we allow the appeal in part, removing the restrictions on weight of any of the vehicles to be operated at the centre, and removing the time restrictions on weekday movements, retaining the provisions ordered by the Traffic Commissioner on weekends and Bank and Public holidays.

Frances Burton
	Judge of the Upper Tribunal
	24 March 2011