PSV 'condition' order quashed by Tribunal
Page 104
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Hastings and District Transport
III The appeal of Hastings and District Transport against a decision of the South Eastern Traffic Commissioner has been allowed by the Transport Tribunal.
The Commissioner had imposed a condition under Section 26 of the Transport Act 1985 that the firm was not to run any local services which were not in its schedule of registration. The Tribunal quashed this order.
Hastings and District Transport was granted a standard national and international public service vehicle operator's licence for five years on 9 May 1983. Following two variations, there were 117 authorised vehicles.
In preparation for deregulation the appellants registered more services than it could provide until it had recruited and trained sufficient drivers. Those extra drivers had not been recruited and trained by 26 Oct 1986.
In the first three weeks or so after deregulation the volume of complaints received by the Traffic Commissioner about the appellants failure to run services in accordance with the registered particulars was such that the Traffic Commissioner informed Hastings by a letter dated 7th January 1987 that he would hold a public inquiry on I I th February 1987 to consider whether to revoke this licence under Section 17(1) or (2) of the Public Service Vehicles Act 1981, or impose conditions under Section 26 of the Transport Act 1985, or make a determination under Section 111 of the Transport Act 1985.
The evidence from complainants is summarised by the Tribunal in its written judgment.
Complaint from the Properly Services Agency in a letter dated 10 November 1986: On 27-30 October (inclusive) and 4 November 1987 there were a total of about 49 incidents, involving three services, of buses failing to run in accordance with the published time-table.
Evidence from Michael John Dearing, secretary of the Hastings Bexhill and District Transport Users Group: Dearing said that on 5 November 1986 over a period of about 45 minutes he observed (in our calculation) about 38 occasions of buses failing to run or late.
In the first month after deregulation he received in the region of 70-80 complaints.
Evidence from Mr Garner, a member of the Transport Users Group and also the transport representative of the Hastings and St Leonards First Association: Although things were chaotic following deregulation, the services improved.
Evidence from Mr Lambert "a frequent bus user". A chaotic problem existed, 'certainly during the first week and even beyond that'. Since that time things had "certainly improved".
Evidence on behalf of the appellants Only witness was Yates. traffic manager.
Yates explained the problems and delays in negotiating rates of pay and conditions of service with the unions and the difficulties in drawing up new schedules.
He agreed that initially the appellant was "inundated with complaints" but he disputed 18 of the 49 incidents claimed by the PSA.
By the middle of November there were an additional 15 drivers trained and driving.
The Traffic Commissioner decided: (a) The appellants had not lost their good repute.
(b) A determination under Section 111 of the Transport Act would result in too severe a financial penalty.
(c) The appellants had no reasonable excuse for their admitted failure to run services in accordance with their registration and the proper order was to impose a condition. He explained that the condition would permit a period of consolidation and enable the appellants to concentrate on registered services.
Without being asked so to do, the Traffic Commissioner ordered that the condition would not come into effect until the time for an appeal had run out or any appeal had been determined. He also said that he would be prepared to hear an application to remove the condition after three months.
The appellants appealed from that decision. Mr Waller, solicitor for Hastings, argued two main grounds of appeal: The Traffic Commissioner concluded that the appellants failure to operate services in accordance with their registration was more serious and continued longer than the evidence disclosed.
The imposition of the condition was inappropriate and flawed in logic.
The Tribunal considered those two main grounds of appeal in turn.
Main ground 1: Waller had pointed out that there were only complaints about seven, not 37, of the 46 registered services.
Waller had submitted that the evidence showed that significant improvements had taken place by 19 November, some six weeks before the time stated by the Commissioner.
"In our judgment Mr Waller succeeded in both those submissions," says the Tribunal.
Main ground 2: Waller submitted that the imposition of the condition was inappropriate because, although the Traffic Commissioner said that he would entertain an application to remove it after three months, it might well be in force for five or more months if he decided to hold a public inquiry.
Waller said that in any event the Traffic Commissioner had rendered nugatory the proposed three-month period of consolidation by ordering that the condition should not take effect until after any appeal.
This, Waller submitted, left the appellants free to carry on registering further local services while consolidation was required.
"Once again we have concluded that Mr Waller has succeeded in both those submissions' says the Tribunal.
Although we considered whether to substitute a determination under Section 111 of the Transport Act 1985, we decided that it would not be right so to do having regard to the fact that the Traffic Commissioner, even on his conclusions as to the effect of the evidence, considered that such a determination would result in too severe a financial penalty, and we also bear in mind that he accepted that, the problems encountered by the appellants on deregulation 'were not all of their own making'."
There was no doubt, however, that for the first weeks after deregulation the appellants without reasonable excuse caused very many members of the public great inconvenience.
"The Traffic Commissioner was therefore right to call on them to account for those failings at the public inquiry."