Neutral Citation Number:	[2011] UKUT 356 (AAC)

Appeal No.  T/2011/40

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF MISS J AITKEN

TRAFFIC COMMISSIONER for the SCOTTISH TRAFFIC AREA 
Dated: 16 May 2011

Before:
Judge Alan Gamble, Judge of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal
Stuart James, Member of the Upper Tribunal

Appellant:	BM Transport Services Ltd

Attendances:  Mr M Cunningham, Solicitor, Backhouse Jones, Solicitors

For the Appellants:  

Heard at:	George House, 126 George Street, Edinburgh EH2 4HH
Date of hearing:	5 August 2011
Date of decision:	24 August 2011

DECISION OF THE UPPER TRIBUNAL

The Traffic Commissioner’s decision of 16 May 2011 is set aside.

IT IS HEREBY ORDERED that the appeal be allowed.

SUBJECT MATTER:-  	Appropriate financial standing

CASES REFERRED TO:- 	None

REASONS FOR DECISION

1.	 This is an appeal by the appellant company against the decision of the Traffic Commissioner for the Scottish Traffic Area dated 16 May 2011 to revoke their goods vehicle operator’s licence.  That decision was taken without a Public Inquiry being convened. 

2.	The Traffic Commissioner has granted a stay of her decision. 

3.	The appellant company was represented before us by Mr M Cunningham, Solicitor.  He was accompanied by Mr T Bowie a director of the appellant company.  We are indebted to Mr Cunningham for his submissions. 

4.	The factual background to the appeal appears from the documents on file.  It is as follows: 

	(i)	On 28 February 2011, Mr Bowie wrote to the Traffic Commissioner’s Office on behalf of the appellant company informing them that the company was still active and operating under the terms of the operator’s licence but an  offer had been received to purchase their share capital had been received from Kennedy Transport Services Limited.  That company intended to apply for their own operator’s licence and the appellant company intended to surrender their licence as part of the sale process.  The letter from the appellant company  went on to narrate that a six week period of due diligence was ongoing and that Kennedy Transport Services Limited held the appellant company’s original bank statements as part of the due diligence procedure. 

	(ii)	On 9 March 2011 Kennedy Transport Services Limited wrote to the Traffic Commissioner’s Office confirming that they were in the process of purchasing the appellant company and that that process would involved applying for a new operator’s licence in their own name.  

	(iii)	On 13 April 2011, the Traffic Commissioner’s Office wrote to the appellant company referring to the above letters and stating that the Traffic Commissioner was proposing to revoke their operator’s licence because of a material change in their circumstances which was described as being that they did not meet the requirement of appropriate financial standing.  Responses from the appellant company were requested.  The appellant company was also offered the opportunity to request a Public Inquiry.  

	(iv)	The above letter crossed with one of the same date from Kennedy Logistic Services Limited applying for an operator’s licence and stating that the purchase of the share capital of the appellant company had been completed and that their licence would be surrendered when a new licence was issued to Kennedy Logistic Services Limited. 
	(v)	On 27 April 2011, the appellant company wrote in response to the letter from the Traffic Commissioner’s Office dated 13 April 2011 stating that the sale of their assets would only proceed when the new licence was issued to Kennedy Logistic Services Limited.  That letter emphasised that the appellant company was aware that their operator’s licence was not transferable and stressed that there had been no material changes in their circumstances. 

	(vi)	We are satisfied, on balance of probabilities, that the letter of 27 April 2011 was sent on behalf of the appellant company.  However, it was not received by the Traffic Commissioner’s Office.  Because of non-receipt it was not treated as a response to the letter from that office dated 13 April 2011. 

	(vii)	On 16 May 2011, that office intimated by letter to the appellant company that their operator’s licence had been revoked by the Traffic Commissioner on the basis that no responses had been lodged to the letter dated 13 April 2011 nor had any request for a Public Inquiry been made. 

5.	On the basis of the contents of paragraph 4 above, Mr Cunningham first of all submitted that the revocation of the appellant company’s operator’s licence on 16 May 2011 was invalid as the relevant letter contained no substantive reasons for the Traffic Commissioner’s decision.  He submitted that such reasons were required as the revocation of their operator’s licence represented the removal of a significant property right of the appellant company.  This was so especially if a Public Inquiry had not been held.  The operator’s licence, he submitted, was “a possession” of the appellant company (presumably this part of Mr Cunningham’s submission was made having regard to Article 1 of the First Protocol to the European Convention on Human Rights as enacted by the Human Rights Act 1998).  It was unnecessary for us to make a decision on this submission given that we have accepted Mr Cunningham’s second submission which we narrate in paragraph 6 below. 

6.	Mr Cunningham’s second submission was once again based upon the contents of paragraph 4 above.  It was expressed in a two-fold way.  Firstly, the Traffic Commissioner, even without the letter of 27 April 2011 before her, had had insufficient information to hold that the appellant company’s circumstances had materially changed and in particular that it was no longer of appropriate financial standing.  Secondly, in any event, with that letter before us we should hold that such a change and, in particular, the appellant company no longer being of appropriate financial standing had not been established.  We consider that both of these formulations of Mr Cunningham’s second submission are well founded.  We do not consider that the material change of the appellant company ceasing to be of appropriate financial standing has been made out given all the information before us as summarised in paragraph 4 above.  The appellant company has not been shown not to be of appropriate financial standing in the light of the contents of that paragraph.  In our view, the Traffic Commissioner was plainly wrong so to hold. 

7.	So far as the disposal of this appeal is concerned, we simply set aside the Traffic Commissioner’s decision of 16 May 2011 revoking the appellant company’s operator’s licence.  We do not consider a remit for a Public Inquiry by a Deputy Traffic Commissioner is either necessary or expedient in all the circumstances of this case. 

A J GAMBLE
24 August 2011