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Precedents in Licensing

1st May 1936, Page 106
1st May 1936
Page 106
Page 107
Page 106, 1st May 1936 — Precedents in Licensing
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Key Appeal Decisions that Guide Licensing Authorities in Considering Applications for A and B Licences, Renewals or Variations BEFORE a prospective applicant for a new A or B licence, or for a renewal or variation, can forecast the likelihood of suceess of his venture, he must understand the principles which guide the Licensing Authorities in reaching their decisions. For this information, he must turn to the findings of the Appeal TribUnal, which are virtually establishing case law in the road-transport industry. A number of key decisions has been given, and, in some instances, seemingly trivial cases—those of Enston and Dunnett, for example—have proved to be of national inqiortance.

Principles Established.

Among the principles determined by the Tribunal are those relating to the granting of licences to newcomers, hiring by hauliers, considerations applying to B licences, and collection and delivery services, evidence to be adduced in applications for increased. tonnage, the onus of applicants and objectors, and the duties of Licensing Authorities in determining applications.

The key ruling affecting newcomers is the Enston decision, which has been quoted countless times in every traffic court in the country. In this appeal, the Tribunal laid it down that a newcomer must show that there are persons ready and willing to employ him, and establish a prima facie case that the work which he• is doing or proposes to carry out cannot be handled by any other operator, whether road or rail, in the district. This principle applies to persons who were previously engaged in the industry and who, after a temporary absence, now wish to return to it, and to B-licensees who desire to change to the A-licence class, as well as to new entrants.

In the case of McLachlan and Morgan, the respondent concern, which c48 had operated its own vehicles for a long period prior to 1928, but from that date until 1934 conducted the business of forwarding agent and carried goods in hired vehicles, was classed as a newcomer.

• In applications for additional tonnage, considerable use is. being made of the argument that the applicant wishes to dispense with the need for hiring, in part or wholly, and that his experience with subcontractors has been unsatisfactory. The principles concerning hiring were established in the Barr case.

Special Reasons for Not Hiring. • The Tribunal held that the mere desire of an operator to dispense with hiring as a matter of personal convenience is not sufficient ground for the authorization of additional vehicles. He must show that there are special reasons for his doing so, such as the difficulty in hiring locally certain types of vehicle, such as covered vans.

The specialized nature of goods carTied may also be a good ground for dispensing with hiring. Shortages of certain types of vehicle were proved in the Tait and MacConn and Hawker cases. In the McLachlan and Morgan case, the Tribunal 'held that the fact that a subcontractor has been unsatisfactory is not a special circumstance justifying the grant of a licence to an operator to enable him to run his own vehicles.

The first appeal decision relating to increased tonnage was that of Ridgewell, where the Tribunal declared that to justify extra vehicles the applicant must show a general expansion in his business. Where an applicant relies on an increase in the business of only one or, perhaps, two customers, the extra vehicles should be authorized under Contract A licences.

Increase in Business.

In the circumstances of Robson's case, the Tribunal held that the fact that the general increase in business was largely attributable to the custom of one particular concern, was not a ground for committing the applicant to a contract licence, which might have caused hardship. According to railway counsel, about half of the vehicles owned by the Robson company were used for carrying goods for one concern.

The distinction is that Messrs. Ridgewell supported their case for discretionary tonnage upon evidence that two particular customers were willing to supply further work, whereas in the Robson appeal, the case was based upon evidence of a general increase in the tonnage of goods carried for all customers, and of one in particular. The Tribunal, in its decision on the Barkley appeal, held that a carrier who anticipates that he is not likely to use his vehicle for work other than for one person, ought not to be granted an ordinary A licence.

One of the most valuable appeal decisions is that of Hawker in that it provides really practical advice to applicants for additional tonnage. It was decided that if an applicant was established during the basic year, it is sufficient to show some expansion in the businesses of his customers or the industries in which they are engaged. As a formula for arriving at the amount of additional tonnage to be allowed, the Tribunal approved a calculation of tonnage of goods carried per ton of unladen vehicle weight.

Evidence of Gross Receipts.

The decision was elaborated in the Beasley appeal. The question of the weight to be attached to evidence of an increase in gross receipts and to evidence of hiring was raised. The Tribunal agreed that, in certain instances, such as those of furniture removers, livestock carriers, small parcels carriers, and operators of collection and delivery services, evidence of tonnage of goods carried per ton of unladen vehicle weight could not be given, in addition to details of an increase in gross receipts. Briefly, the Tribunal stated that when considering evidence of an inflation in • gross receipts, regard should be had to:— Ii) The date when the applicant etarted business, (2) The number of vehicles which be is authorized to use, the respective periods during which they were operated and their respective unladen weights, expressed preferably as tonmonths of unladen weight.

(3) Whether the total mileage or mileage per vehicle was substantially the same during the periods under comparison.

(4) Whether the classes of goods carrieddiscintjaheroreritdes nasirinciethe rates charged were u(5) 414ietlfer the character and mileage of the journeys during these periods were aabstantially the name.

(6) Whether the periods were comparable. (7) Whether the increase is due to traffic obtained by charging rates uneconomic to the applicant.

Where an applicant cannot use the Hawker formula, he should give evidence of an increase in gross receipts since the date of the original grant, or since the most recent grant of additional tonnage.

With regard to those who have hired only casually, evidence of hiring, coupled with that of increased gross receipts, is of assistance in deciding whether the applicant's business has expanded. Evidence as to hiring should show that, since the date of the original grant or the most recent grant of additional tonnage, the extent of hiring, tested over a reasonable period, has increased abnormally. It should alsia show that the necessity, t>f hiring has arisen through the applicant's inability to provide with his existing vehicles suitable facilities for customers whose goods he had previously carried in his own machines.

According to the Burgess decision, the fact that a carrier has been compelled to hire to transport his customers' goods is not evidence that either his business or 'theirs has increased. In determining the number of vehicles to be authorized to a seasonal Small operator, no regard should be had to the need for providing for vehicles being withdrawn for overhaul.

• Collection and Delivery. •

Pointers for those concerned with the operation of local, collection and delivery. services in connection with trunk facilities are contained in the Sanderson appeal (usually known as the Loftus case) and the Bouts-Tillotson decision. In the former case, the Tribunal established that railway companies are in an exceptional • position, owing to their peculiar statutory obli

gations as to collection and delivery.

• If a railway company can show, that it can carry out these obligations more efficiently with the vehicles being sought than without them, the application should succeed, notwithstanding the fact that it will permit the abstraction of traffic from other existing carriers. In the Bouts-Tillotson appeal, it was laid down that if a road-transport company could show that the use of its own vehicles for collection and delivery could be more easily co-ordinated with its trunk services, it should also succeed in its application for local vehicles.

In several cases, it has been pointed out that evidence in support of an application for , vehicles to be used locally must be of a local nature, and • that details of a company's activities generally throughout the country are of no avail.

Conditions Accepted in Error.

So far as B licences are concerned, the Tribunal decided, in the Charmau appeal, that where an applicant agrees by mistake to certain conditions, it may rectify the error and make such consequential amendments to the conditions as may be reasonable. The Tribunal has, however; no jurisdiction to order a Licensing Authority to extend beyond the radius mentioned in the published application the area for which a B licence is granted.

In both the Cox and Barratt cases, the Tribunal held that it is not generally desirable in the public interest, for B-licensees to be allowed to carry return loads for hire or reward when suitable facilities are offered by fulltime operators.

The question of the onus of applicants and objectors has recently been brought into prominence by the submission for the railways, as yet un

determined by the Tribunal, that, if an objector can prove that transport facilities are in excess of requirements, or would be if the application were granted, it should automatically be refused.

In the Burgess and McLachlan and Morgan cases the Tribunal held that the burden of proving objections does not lie on the objectors, but that the onus of disproving them lies, in the first place, on the applicant. In the case of Motor Carriers (Liverpool), Ltd., the Tribunal applied this ruling even to allegations that the applicant has abstracted traffic from objectors.

In the Dunnett appeal, upon which the railways are relying considerably, the Tribunal expressed the opinion that if the evidence supported the propositions made by the railways (it was submitted. that if an objector established that Suitable facilities were already excessive, or that they would be if the application were granted, the case should be rejected) the Licensing Authority, should . have refused the application. In the Tribunal's, opinion it would be contrary to the interests of the public generally and' those 'of operators, for a person to be authorized to use a vehicle when it had been proved that suitable facilities were either already in excess of requirements,. or would be if the application were granted.

Proof Of Criminal 'Offences.

An objector who 'alleges that an applicant has committed criminal offences must, on the • basis of the Bouts-Tillotson case, furnish particulars if the latter requires them. Moreover, the alleged offences must be strictly proved.

Previous offences in connection with drivers'. hours and the loading of vehicles, and the charging of uneconoinic rates,do not constitute "previous conduct" under Section 6 (2) of the 1933 Act, and an Authority is not entitled, inslaw, to .take such matters into consideration when exercising his discretion under-that section. If, however, an objection be made under Section 1.1. (2) on the ground of

" excess of requirements," these factors are relevant. A Licensing Authority is entitled to consider the matter of rates only insofar as the traffic upon which an applicant relies in his application has been secured by charging uneconomic rates.

Among other points settled by the Tribunal are that it has no jurisdiction to allow an amendment of a notice of appeal, and that a Licensing Authority, in exercising his discretion, may use his own knowledge, but, if he proposes to do so, should warn the parties.

" Transfer' " of Licences.

The key ruling concerning the transfer of businesses is that of the Boston Haulage Co., Ltd. The Boston concern applied to the East Midland Licensing Authority for a variation of its licence by the inclusion of the five vehicles to be taken over from the other haulier. The Tribunal held that the application did not fall within Section 11 (3) (b), and that paragraph (b) of Sub-section 3 applied only to applications for licences, and not to variations.

It was also ruled that a haulier purchasing another operator's business and applying for a variation of his own A licence by the inclusion of the acquired vehicles must prove (1) that the vendor his a business as a public carrier ;

(2) that his customers are prepared to transfer their work to the purchaser ;

(3) that the work should be carried out Under an A licence ; (4) that it is reasonably necessary for the purchaser to use the vendor's vehicles.

There is yet another case which. although not a decision of the Appeal Tribunal, is of national importance. We refer to the House of Lords ruling supporting the judgment of the Court of Appeal on the case of Rexv. 'West Midland Licensing Authority, ex parte Great Western Railway Co.

Triumph in the Lords.

‘, Hill and Long, Ltd., applied to the -Licensing Authority for a B licence, and specified a certain area of operation, but the Authority granted permission to carry furniture over unlimited distances. The G.W.R. sub mitted that this grant was illegal, and took the matter —to the Divisional Court, whence the action proceeded to the Court of Appeal and, finally, to the House of Lords. The Lords held that, although in its application for a B licence it specified certain districts in which the vehicles would normally be used, Hill and Long, Ltd., was itnpliedly asking for a licence unrestricted as to area.

The effect of the decision was to establish the point that an Authority has jurisdiction to grant a B licence for the transport of goods for any distance, when only a particular district has been indicated in the application. This case is of thegreatest importance to B-licence holders and shows that, in many instances, the Licensing Authorities have misinterpreted their duties in applying restrictions, wholesale to limited carriers' licences.


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