Neutral Citation Number: [2013] UKUT 0388 (AAC)		Appeal No.  T/2013/28

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of
Richard Turfitt, Traffic Commissioner for the 
Eastern Traffic Area dated 27 March 2013

Before:
Her Honour Judge J Beech, Judge of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal
George Inch, Member of the Upper Tribunal

Appellant:

JB LOGISTICS LIMITED

Attendances:
For the Appellant: Matthew Birch, Director of the Appellant company.

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ
Date of hearing: 29 July 2013
Date of decision:  5 August 2013

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED

SUBJECT MATTER:-  Impounding; ownership; lack of knowledge

CASES REFERRED TO:- Nolan Transport v VOSA & Secretary of State for Transport T/2011/60; Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.

REASONS FOR DECISION

1.	This was an appeal from the decision of the Traffic Commissioner for the Eastern Traffic Area made on 27 March 2013 when he refused to return an impounded vehicle FX04 EEG to the Appellant company under regulation 10 of the of the Goods Vehicles (Enforcement Powers) Regulations 2001 (“the Regulations”).
 
2.	The factual background appears from the documents and the Traffic Commissioner’s oral and written decisions and is as follows:

(i)	On 29 September 2012, the Traffic Commissioner for the West Midlands of England revoked the standard national operator’s licence of JB Warehousing (West Midlands) Limited and refused an application for a standard national licence made by JB Logistics Limited (the Appellant).  The nominated Transport Manager for both licences was Matthew Birch; the Traffic Commissioner concluded in relation to him that his repute as a Transport Manager was severely tarnished.  Paragraph 25 of the Traffic Commissioner’s decision reads as follows:

“If Matthew Birch seeks to have his name put forward as a director and applies for a licence, I will want to see him at a public inquiry.  I would expect him to have learned his lesson and to be open and honest with regulatory authorities.  I would also expect to see tangible proof that he has not been operating without an operator’s licence in the meantime.”

(ii)	On 8 February 2013, a three axle Mercedes flatbed vehicle registration number FX04 EEG was stopped and examined near Bury St Edmunds.  It was loaded with metal castings and was in the livery of JB Warehousing (West Midlands) Limited.  It also displayed an operator’s licence disc in that company’s name. The driver stated that he worked for Matt Birch and supplied the same telephone number as that recorded on the vehicle for JB Warehousing (West Midlands) Limited.  Mr Birch (who was the sole director of the Appellant company) was spoken to and he stated that he was under the impression that an application for a licence had been made in the name of JB Logistics Limited.  No application had in fact been made and no interim licence had been granted.  The vehicle was impounded.

(iii)	On 28 February 2013, an application was made by Mr Birch on behalf of the Appellant for return of the vehicle.  The application was made under regulation 4(3)(c) of the Regulations, namely lack of knowledge that the vehicle was being used without the benefit of an operator’s licence.  Mr Birch averred in the application that it was as a result of a “poor understanding and failure to take proper notice of details I genuinely believed that during the period from then (i.e the last public inquiry) to my application being processed and heard I was able to operate whilst adhering to Operator licence regulations”.  He apologised for a genuine oversight on his part and stated that it was now clear that the company had to move away from the logistics industry due to “our” failure to grasp the law.  He asked for the vehicle to be returned so that it could be sold to raise capital for new projects and to keep staff employed.

(iv)	The application was heard by Traffic Commissioner Richard Turfitt on 27 March 2013.  The Appellant was represented by Mr Birch, the sole director of the company.  The evidence of TE Pope who impounded the vehicle was not in dispute. 

(v)	Mr Birch gave evidence.  He first of all insisted that he had the relevant documentation to establish that the vehicle was the property of the Appellant company and apologised for not having produced it.  He insisted that the Appellant had bought the assets of JB Warehousing (West Midlands) Limited.  The purchase was dealt with by accountants and Mr Birch offered to provide the documentation to the Traffic Commissioner following the public inquiry.  As for the operation of the vehicle, he accepted that the vehicle was being used for hire and reward and that it required an operator’s licence and it was obvious that the company could not operate vehicles following the public inquiry before Traffic Commissioner Jones unless an application had been considered and granted at a further public inquiry.  Mr Birch made provision to re-apply for an operator’s licence and he believed that he would go before that Traffic Commissioner in order to obtain a licence.  Whilst he was under the impression that his secretary had submitted an application and that the company could operate vehicles on an interim licence, now with the benefit of hindsight, he realised that he would have needed to sign such an application and he had not done so.  The problem was that his mother had died and he was not concentrating on work.  He was burying his head in the sand and thinking in relation to a public inquiry before Traffic Commissioner Jones “well, when it happens, it happens .. and we satisfy the application ..”.  He accepted that he did not have a straight answer to give for the vehicle’s use.  He simply had not been paying attention to his work and had made glaring mistakes.  

(vi)	In his oral decision which was then perfected in writing, the Traffic Commissioner acknowledged that the V5C for the vehicle was in the name of the Appellant and that Mr Birch had stated that the company had purchased the vehicle along with other assets from JB Warehousing (West Midlands) Limited prior to that company going into liquidation.  The Traffic Commissioner concluded on the issue of ownership that “no evidence could be produced to show that the applicant company had actually purchased the agreement (sic) in the manner described by the Director, Mr Birch.  In the circumstances ... this application must fail”.

(vii)	The Traffic Commissioner did however, for the sake of completeness, consider the second issue in the appeal i.e. knowledge of use contrary to s.2 of the Goods Vehicles (Licensing of Operators) Act 1995.  He reviewed the Upper Tribunal decision of Nolan Transport v VOSA & Secretary of State of Transport T/2011/60  in detail.  He concluded that Mr Birch, the sole director of the Appellant company “had such knowledge that should have prompted him to make further reasonable enquiries”.  The Traffic Commissioner relied upon the fact that Mr Birch was aware that he had not signed an application form for an operator’s licence and having only recently been before a public inquiry, knew that the Appellant could not operate vehicles without an interim licence which it did not have.  In the circumstances, it would be unconscionable for the Appellant to retain the benefit of having operated outside the requirements of the licensing system.  Lack of knowledge had not been established.

3.	The Appellant appealed to this Tribunal and was again represented by Mr Birch.  The sole ground of appeal was that the Appellant could establish ownership of the vehicle and attached to the Notice of Appeal two documents.  The first was a letter from R P J Goodwin, a liquidator in the employ of Butcher Woods Corporate Recovery dated 4 April 2013 confirming that vehicles, including FX04 EEG had been sold by JB Warehousing (West Midlands) Limited to the Appellant on 6 February 2012.  The second was an invoice provided by Mr Goodwin dated 6 February 2012 for the sale of four vehicles (including FX04 EEG) to JB Logistics Limited.  Mr Birch informed the Tribunal that his main concern was to establish ownership of the impounded vehicle.  He accepted that he could not challenge the Traffic Commissioner’s findings in relation to regulation 10(3)(c) and that he had buried his head in the sand when it came to the use of the vehicle without an operator’s licence being in place.  

4.	It is clear that had the Traffic Commissioner granted Mr Birch more time to produce documentation to establish ownership, the letter from Mr Goodwin and the accompanying invoice would have been produced and together would have been sufficient to establish ownership.  We have taken these documents into account despite their absence at the hearing before the Traffic Commissioner because we are satisfied that the Traffic Commissioner, faced with a Director who maintained that he could provide the necessary documentation, should have given Mr Birch a short period of time to produce further evidence so as to establish ownership.  Of course, a finding of ownership in favour of the Appellant could not have affected the ultimate outcome of the hearing before the Traffic Commissioner.   Mr Birch as the controlling mind of the company had more than enough information and knowledge to put him on reasonable enquiry in relation to the presence or absence of an interim operator’s licence.  In “burying his head in the sand” he failed to take the steps any ordinary and reasonable man would have taken to ensure that the vehicle was operating lawfully.  In the circumstances, we cannot find that reason and law impel us to take a different view to the Traffic Commissioner  (as per the test enunciated by the Court of Appeal in the case of Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.  

5.	In the result, whilst we are satisfied that the Appellant is the owner of vehicle FX04 EEG, the appeal is dismissed. 

Her Honour Judge J Beech
5 August 2013