Coal Washing Is it LICENSING Glicence Work? CASEBOOK
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BY NORMAN H. T1LSLEY
SOUTH WALES L.A. ADJOURNS CASE TO SEEK ADVICE
THERE appears to be divergence of opinion between lawyers representing objectors to an application made in Cardiff last week and the South Wales Licens:ng Authority and his staff. The latter are acting, I understand, on a direction by the Treasury Solicitors. The difference was over the interpretation of section 164 (5) (b) of the 1960 Road Traffic Act, which says this:— (5) where goods are carried in a vehicle, those goods shall not, for :he purposes of this part of the Act. .. be deemed to be carried for hire or reward ifi
(b) they are goods which have been, or are to be subjected to a
process or treatment irt the case of a
trade or business carried on by the person using the vehicle, and are being delivered or collected by him.
The question arose during an application by L. Ryan Holdings Ltd,, of Lantgarw (Gimp), for a new B licence under which it wished to operate 20 vehicles on the carriage of (according to Applications and Decisions) " Collieries tip material and coal within a radius of 40 miles of base ". Because there was no Road and Rail Committee agreement, eight objectors, represented by Mr. Tom Corpe and Mr, C. Rosser-John, opposed the application.
• From the evidence produced by the applicant it appeared that the National Coal Board is "somewhat behind on the development of pits as compared with the rate of development of industry" (to use the words of an N.C.B. witness). The Board was basically short of coal.
L. Ryan Holdings Ltd., the applicant, owns several coal washing plants, and specializes in acquiring private pits and turning the waste material, by a process of washing, 'into industrial fuel.
The Licensing Authority was told that, . because of the shortage of coal,' the N.C.B. had let out to tender some of its tips and Ryan Holdings (already carrying 6,000 tons a day from tips to washeries, and after treatment from washer ies to rail-heads) estimated that it would have to deal with an additional 600,000 to 1 million tons per annum from tips in the No. 5 Area of the Board. Ryan had been granted a short-term Es licence coveting 20 vehicles.
Closely cross-examined by Mr. Corpe, the general manager of Ryan Holdings, Mr. Roper, agreed that in connection with the carriage of material from its private tips the company could legally use C-licensed vehicles. It was doing precisely the same work now, but for the N.C.B. instead of on its own behalf. The modus Operandi was simply this: the company set up a washbox near the tip and the raw material was lifted, with excavators or other vehicles, to the proximity of the loading end of the washbox. It thus went into the washbox on a belt for separation and, apparently, the percentage of coal produced varied between 15 to 45 or 48 per cent.
Asked if he had taken legal advice about the licence required, Mr. Roper said that there had been a conversation with a Mr. Tilyard of the L.A.'s office, who had said that a B licence was necessary to undertake the work. Questioned by the Licensing Authority, Mr. Roper said that transportation and handling costs far outweighed the costs of the overall operation in the ratio of about 2f or 3 to one, The Coal Board official who supported the application was able to give some figures to the Licensing Authority. "About 4s. 3d. per ton Would be the haulage charge for a 10-mile journey. We pay 5s. a ton to haul tip materials seven miles, and for five miles with a 15-ton tipper the Board is paying 3s. 3d. for Si miles and 3s. for five miles ".
It was at this stage that both Mr. Corpe and Mr. Rosser-John tried to stop the case. By subjecting the original material to a process or treatment, the work fell within the ambit of section 164 (5) (b) of the Act (quoted above), Mr. Corpe said. It could therefore be undertaken by vehicles operating under C licences. There was authority for this in George Wimpey and Co. v. John (in which it was held that the carrying of coal to the
screening plant and therefrom either to a washing plant or, if it was rejected, back to the opencast mining site, was held to fall within paragraph 5 (b) of sec. 164).
The proportion of the work which the haulage bore to the cost of the actual process was immaterial, he submitted. There was nothing in the Act, he continued, about taking this into account.
It was important, Mr. Corpe submitted, that a B licence should not be granted, except for work which could only be undertaken under a B licence. He reminded the LA. of the Transport Tribunal's judgment in the Kitts Transport appeal which, if applied in the present case, would mean that if the applicant company was granted a B licence and it sought to add to the conditions granted, at a later stage, there could be no statutory objections and, as a result of this, there would be no right of appeal.
Mr. Jackson, the L.A., adjourned his decision. "I am in a certain amount of difficulty," he said. He had tried to consider the legal implications but, he continued, he understood that the Treasury Solicitors had stated that the question centred primarily around the cost of transport.
Should Mr.: Jackson grant the application, the matter will without a doubt go to the Tribunal for clarification, But be that as it may, what about the advice tendered by Mr, Tilyard? The Tribunal in its Double-Est Transport appeal judgment, ruled that such advice "must not be taken as coming from a licensing authority or having his approval, and a haulier seeking such informal advice takes it at his own risk ".