Neutral Citation Number: [2013] UKUT 0202 (AAC)                           Appeal No: T/2012/77

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

ON APPEAL FROM THE DECISION OF C R SEYMOUR, 
DEPUTY TRAFFIC COMMISSIONER for the WEST MIDLANDS TRAFFIC AREA, 
DATED 23 NOVEMBER 2012

Before:
Judge M Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.
Mr L Milliken, Member of the Upper Tribunal.
Mr M Farmer, Member of the Upper Tribunal.

Appellant:
EDWARDS TRANSPORT (SHROPSHIRE) LTD

Attendance:
For the Appellant: 	Mr T Nesbitt, Counsel instructed by Marshall Glover, Solicitors

Appeal heard at: 	Victory House, Kingsway, London
Date of hearing: 	27 March 2013
Date of decision: 	29 April 2013

DECISION OF THE UPPER TRIBUNAL:

IT IS HEREBY ORDERED that the appeal be dismissed.

Subject matter:	
Environmental Case.
Need for clear and cogent evidence if an operator wishes to assert that the consequence of an increase in authorisation is, for some reason, not what might be expected.

Cases referred to:
Edwards Transport (Shropshire) Ltd 2005/356
A Tucker & Son Ltd [2011] UKUT 462 (AAC)

REASONS FOR DECISION:

1)	This was an appeal from the decision of the Deputy Traffic Commissioner (DTC) for the West Midlands Traffic Area made on 23 November 2012 when he refused to grant in full an application to increase the number of vehicles and trailers authorised under the appellant’s standard international goods vehicles operator’s licence. The appellant had sought an increase to 47 vehicles from 32 vehicles, and to 70 trailers from 40 trailers, based at an operating centre at Hatton Road, Market Drayton. The DTC granted an increase to 34 vehicles, but this was simply to allow for a margin, and he imposed a condition that no more than 32 vehicles may be kept and operated from the operating centre at any one time. He also granted an increase in the trailer authorisation from 40 trailers to 55 trailers, although this was on the calculation that no additional vehicle movements would be generated. 

2)	The factual background to this appeal appears from the documents, the transcript and the DTC’s decision and is as follows:
(i)	The appellant’s business relates to temperature controlled warehousing and this involves the operation of large goods vehicles and refrigeration units. The company is the holder of a standard international operator’s licence authorising 32 vehicles and 40 trailers. The licence was originally granted in 2004, and a public inquiry following an application to increase authorisation was held in 2005 when, following a successful appeal, authorisation was increased but environmental conditions were imposed.
(ii)	In response to the application for an increase in authorisation, three representations were received, all of which were deemed to be valid.
(iii)	A public inquiry was held on 20 November 2012 at which evidence was received from a Traffic Examiner, two representors, and Mr Edwards (on behalf of the appellant company). The DTC also undertook two site visits.
(iv)	The DTC accepted the Traffic Examiner’s finding that the site could accept the authorisation sought. He found that, excluding vehicles going to or leaving the operating centre, traffic along Hatton Road was light. He said, “like the TE, I observed very few vehicles in the hour I spent in the locality” and “I visited the location a second time on the day of the inquiry, which validated my earlier impressions”. His assessment was that, excluding any activity in the operating centre, the ambient noise in the vicinity of nearby residential properties was low. Thus, an increase in movements would be noticed, and would be likely to have an adverse environmental consequence for nearby residents.
(v)	The DTC found that one representor (Mrs Hems) was significantly affected by vehicle movements to and from the operating centre, as well as noise generated by maintenance activity and from the refrigeration units and vehicle wash, and that this was only partially mitigated by the current environmental conditions. The DTC was concerned that any additional vehicle authorisation with associated vehicle movements and noise would result in a significant increase in the level of disturbance. The DTC also found that the other representor who gave evidence (Mr Walker) was adversely affected, particularly by vehicles entering and leaving the operating centre, and by the refrigeration units.
(vi)	Mr Edwards, on behalf of the appellant company, explained that the company was expanding. Mr Edwards sought to persuade the DTC that any extra movements generated would not add significantly to the current level of noise intrusion from a busy operating centre. In particular, Mr Edwards said, after some uncertainty, that visiting vehicles generated approximately 40 vehicle movements per week, but he produced no documentation or analysis to support that contention.
(vii)	The appellant claimed that the additional 15 vehicles requested would not give rise to a proportional increase in vehicle movements and, if all the additional vehicles requested were actually acquired, this would only give rise to an additional 30 movements per week. This was because the new vehicles would make only one movement in and one movement out of the operating centre per week. The plan was to use the additional vehicles for subcontracting to other hauliers, in order to help them to meet their shortfalls.
(viii)	The DTC was sceptical of these calculations and said he did not understand how Mr Edwards could assess, in advance, how those vehicles would be deployed. Such operations may involve daily, part or full weekly contracts that may give rise to anything between the ‘best scenario’ of 30 movements per week to the ‘worst scenario’ of 210 additional movements per week  - based on each of the additional vehicles leaving and returning to the operating centre daily throughout the week. The DTC accepted that both scenarios may be completely wide of the mark but, in the absence of any better information from the operator, he could do little more than base his projections on a probable proportional increase in line with current usage which, he calculated, would equate to an additional 45 movements per week. The DTC added:
 “Accurate data as to vehicle movements is essential for an application of this kind and in view of the history of this site I expected the operator to come equipped with a documented analysis showing all movements in and out of the operating centre for at least the last month together with a proper business plan justifying the need and deployment of the additional vehicles and trailers. This omission is particularly pertinent in the face of a similar situation at the last inquiry where, following an inability to project anticipated vehicle movements, the operator voluntarily amended his application from an increase for 15 vehicles and 15 trailers to 5 vehicles and 5 trailers.”
(ix)	As the DTC noted, a concern at the 2005 public inquiry had been that the operator had failed to demonstrate that the increase in the vehicle movements would not be proportionate to the increase in the authorisation sought.
(x)	In his conclusions the DTC said that if the appellant were to succeed in the application for an additional 15 vehicles and 30 trailers, it was being said that the increased authorisation may not be fully utilised in the immediate short term. However, the appellant would have the right to fully utilise the authorisation and, in the absence of clear evidence as to how many additional vehicle movements would actually be involved, he had to consider the worst as well as the most likely scenarios.
(xi)	The DTC found that the representors were seriously and adversely affected by a high level of disturbance caused by authorised vehicles. This was particularly so in relation to Mrs Hems, where the stage had been reached where any further intrusion would be “intolerable” and should be avoided if at all possible.
(xii)	The DTC noted that the appellant had not assisted the inquiry in relation to the baseline of existing vehicle movements, nor had any clear picture been given as to how any increase in authorisation would impact on that existing level of disturbance.
(xiii)	The DTC concluded that any increase in vehicles would result, not only in additional movements, but also additional noise and activity, all of which would further impact on the representors’ quiet enjoyment of their properties. The DTC found that “the level of acceptability has been reached” and so the only increase in vehicle authorisation he was prepared to grant related to a small additional margin of two vehicles.
(xiv)	With regard to trailers, the DTC accepted that there may be an additional need for more ‘standing trailers’ at customers premises. Accordingly, he granted an increase of 15 additional trailers which, he said, would not be expected to give rise to any additional vehicle movements - but may generate a small increase in maintenance and cleaning activity. This, he found, would impact to a small degree on the representors, but this was justifiable in the interests of maintaining the operator’s current business.

3)	At the hearing of this appeal, the appellant company was represented by Mr Nesbitt who submitted a skeleton argument for which we were grateful.

4)	The first point made was that the DTC was wrong to base his findings on current vehicle movements and disturbance on his personal impressions following a site visit. The operator’s evidence should have been preferred because it was based on the figures set out in a document exhibited at page 166 of the bundle.

5)	We are unable to find merit in this point. The document at page 166 shows simply that there were approximately 96 vehicle movements per week, and there is no separate calculation to show how many of these movements (if any) were visiting vehicles as opposed to authorised vehicles. The DTC had not rejected clear objective evidence in favour of his own impressions from two site visits. Rather, he questioned the operator’s assertions, which were unsupported by the sort of objective evidence that he reasonably expected to be made available (especially after the previous public inquiry). That the assertions made conflicted with his impressions following two site visits was, at least, worthy of note. But the key point is that an analysis of the transcript shows that Mr Edwards was, in fact, confused and uncertain about the numbers of movements by visiting vehicles compared with movements by the appellant’s authorised vehicles, and he had no figures that assisted his eventual assertions.

6)	The DTC decided that, in the absence of persuasive evidence to the contrary, he could assume that each authorised vehicle in the current fleet made three movements per week (96 movements : 32 vehicles). If the appellant had wished to demonstrate that, in fact, visiting vehicles were responsible for a proportion of these movements, with the result that authorised vehicles were responsible for fewer movements, it would have been relatively easy for the operator to put the statistical evidence together, based on logs and records. 

7)	We agree that that failure of the operator to support its assertion that the authorised vehicles were averaging fewer than three movements per week was a surprising failure, not least because the same criticism of the evidence had been raised at the previous public inquiry. We have a copy of the tribunal’s decision - Edwards Transport (Shropshire) Ltd 2005/356 - and note that the reason why the appeal succeeded was because the DTC accepted irrelevant evidence relating to enforcement action concerning a new bund and an extended parking area. However, the tribunal at that time also noted that: “the evidence given in relation to vehicle movements was confusing”.

8)	In the event, we agree that the appellant’s predictions as to the likely number of movements to be made by additional authorised vehicles were speculative, and were unsupported by any evidentially clear projections or a reasoned business plan. The DTC was therefore entitled to attach little weight to these assertions.

9)	Moreover, we do not think that the fine detail of these calculations takes the matter much further. The DTC found, in expecting local residents to accept some environmental intrusion as part of striking the right balance between commercial and private interests, that the limit had now been reached (save for a small increase in disturbance as a consequence of an increase in trailers). This, we think, was a matter for him, having visited the site and having formed his own impressions of the oral and documentary evidence. Accordingly, this ground of appeal fails.

10)	Mr Nesbitt’s next point was that the DTC had been in error in ruling that he had to consider “the worst as well as the most likely scenarios” in terms of noise intrusion. On the face of it, we agree that this choice of words suggests that the wrong standard of proof was used. However, as will be clear from the context, all that the DTC was doing was to say, quite rightly, that he had to work on the basis that any authorisation granted would be used. This always has to be the assumption, whether in relation to maintenance, finance or environmental intrusion. If an operator wants a particular authorisation, the Traffic Commissioner will proceed on the basis that it will be used unless there is specific provision for a margin. The DTC did not assess the environmental intrusion likely to be caused by each authorised vehicle on a worst case scenario - rather, he did so on the perfectly acceptable basis that extra vehicles would probably add to movements pro rata – and he was entitled to do this because no persuasive evidence was produced to displace this reasonable starting point. Accordingly, this ground of appeal fails.

11)	Next, Mr Nesbitt submitted that the DTC had failed to consider whether undertakings and conditions would minimise or alleviate disturbance.

12)	We do not think that the DTC fell into error here. He recognised that this was not an operator that paid no or little attention to the interests of its neighbours. There had been some environmental improvements but, at the same time, the DTC was entitled to look at the matter afresh and strike such balance as appeared right in all the circumstances. The world may be more environmentally sensitive than it was in 2005, so we do not think it can necessarily be said that just because environmental improvements have been made over time, that this then justifies more vehicle movements.

13)	In A. Tucker & Son Ltd [2011] UKUT 462 (AAC) the tribunal said:

“ … we think it right to stress that once a Traffic Commissioner has arrived at a public inquiry he or she cannot be expected to then commence a process of negotiations around possible conditions unless the prospects for a very speedy resolution are good. 

Of course, if it happens that before or during the public inquiry some obvious conditions emerge as potentially offering an appropriate resolution then they should be carefully considered before a decision is taken. But, failing this, a Traffic Commissioner must focus on the statutory task in hand – which is to provide an opportunity for operator, objector(s) and valid representor(s) to give material evidence within the context of a judicial public inquiry, to make appropriate findings arising from the evidence, to then correctly apply the legal framework to the evidence given and to the findings made, and then make a decision.”

14)	Given his views as to the stage reached in relation to the balance between commercial and private interests, and the existence of tight conditions, it is not surprising that the DTC did not explore whether he could realistically and effectively impose further or tighter conditions or extract further undertakings. He was under no obligation to do so, and nothing likely to alleviate his concerns was proposed at the public inquiry. Accordingly this ground of appeal fails.

15)	Finally, Mr Nesbitt submitted that the DTC failed to strike a fair balance. We disagree. We think the decision shows a careful and measured approach, with a proper analysis of the competing perspectives, and a willingness to accommodate a small margin and to increase the trailer authorisation, even if this generated a moderate increase in noise intrusion.

16)	In summary, we are satisfied that, on the evidence presented to him, the DTC did not fall into error and we think that he was entitled to strike the balance as he did. Neither law, nor reason, demand that we interfere. The case illustrates the important point that if an operator wishes to assert that the consequence of an increase in authorisation is, for some reason, not what might otherwise be expected, it is incumbent on the operator to support such an assertion with clear and cogent evidence, preferably backed up by objective logs and records. Assertion alone is unlikely to persuade, especially where the assertion appears to go against the probabilities and where evidence based on records is, or ought to be, readily available.

17)	The appeal is dismissed. 

Judge Mark Hinchliffe, DCP
29 April 2013