Transport Tribunal in Scotland
Page 11
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B.T.C. Appeal Upheld
THE Transport Tribunal, sitting in Edinburgh under its new president,
Mr. G. D. Squibb, Q.C., on Tuesday allowed an appeal by the British Transport Commission against a grant by the deputy Scottish Licensing Authority, Mr. Eva Townsend, to Walker Brothers (Cowdenbeath),.Ltd., of an A-licensed vehicle.
For the appellants, Mr. A. B. Wilkinson said that the granting of the vehicle had been subject to the surrender of a vehicle operating under a Contract A licence for Watlings, Ltd., Who were builders' merchants.
He pointed out that the deputy Authority, in his decision, had said that the applicants had not got a strong case but the objectors had not brought• any evidence in rebuttal with regard to their facilities.
Mr, R. C. B. Currie, for Walker Brothers, agreed that the case was not strong but it was sufficient for the grant of something and the deputy Licensing Authority at that time had decided that an A licence was most suitable.
Answering a question from Mr. H. H. Phillips, a member of the Tribunal, Mr. Currie said that there was no specific evidence, other than that contained in the figures which had been produced to show that the public fleet, as opposed to the contract vehicles, was fully employed.
Giving his judgment, Mr. Squibb said that the Tribunal's view was that the appeal should be; allowed. There was no case for an A licence but he indicated that a B licence, if applied for, would be more favourable.
Six Months' Suspension Was Right
THE Transport Tribunal on Tuesday
refused to modify a six months' suspension of an A-licensed vehicle imposed by the deputy Scottish Licensing Authority for operating outside a declared normal user.
Mr. W. D. Connochie, for the appellant, G. McKechnie Morrison, Aberdeen, said that there was a certain amount of carrying outside the user in the evidence. But it was difficult to know how a man going outside his user should be penalized and when he should not be penalized. The appellant had declared his intention to carry certain commodities within a specified area for certain persons but, owing to circumstances beyond his control, having lost one of his principal customers he was compelled to change the character of his business.
The appellant applied to amend his user, but this was not proceeded with. Following that, the driver's records for a period of three months were examined and it was discovered that on 11 occasions the vehicle had been operated outside its user.
The question which arose for con
sideration was whether it was right to impose such a penalty, bearing in mind that the licence ran for five years and the period under examination was only three months, particularly bearing in mind that the appellant had an application pending to change the user.
Mr. Connochie submitted that the Licensing Authority had been too severe and had pre-judged the case by saying the appellant had done something without authority. "If he cannot change his normal user without permission, then he cannot prove need for the traffic for which he is asking," Mr. Connochie submitted, adding, "When it is suggested that he must have authority, it would appear that an A licence is no longer an A licence."
Dismissing the appeal. the President, Mr. Squibb, said that the Authority's nonacceptance of the appellant's plea that he thought an A licence was "open" was right. The appellant had acted with his eyes open. The Licensing Authority's decision was right and proper.
Second Appeal Succeeds
THE Tribunal were told on Tuesday that if they did not allow an appeal by an Ardrishaig operator, allowing him to operate one vehicle on A licence, he would probably go out of business because his contract A customer proposed to revert to C-licence operation.
They were hearing the appeal of Archibald Ferguson, who was asking them to reverse a decision of the Scottish Licensing Authority in which he refused, for the second time, to grant a vehicle to carry fish, timber, brick, pipes, machinery and paper in varying percentages to various parts of the country.
Mr. J. G. Milligan, for the appellant, said that the appeal had been before the Tribunal earlier in the year and was remitted back to the Authority, .but again refused.
The vehicle concerned was purchased from the Road Haulage Disposals Board by a Mr. James Kelly, and was operated under a special A licence based at Liverpool. In. June, 1960, Mr. Kelly obtained an A licence with a base at Glasgow, the user being almost similar to that now sought by the appellant.
Just before Mr. Kelly got his A licence. however, he entered into an "agreement" with Ferguson whereby Ferguson .would operate the vehicle for a period of one year. The vehicle was thereafter operated by Mr. Ferguson but, through ignorance of the law, he used his own drivers; the outcome was a criminal prosecution. In March, 1961, the Authority removed the vehicle from Mr. Kelly's licence on the ground that it had ceased to be used by Mr. Kelly. The vehicle was taken off the road, and shortly afterwards Mr. Ferguson lodged the application which was the subject of the present appeal.
For the respondents, the B.T.C., Mr. A. B. Wilkinson said the penalty suffered was irrelevant; the vehicle was removed from Mr. Kelly's licence and the only disability suffered was his inability to prove the need for a vehicle which he had never had on a licence. The application could not be regarded as a simple take-over of a going COMM!.
Giving the Tribunal's decision, the president, Mr. Squibb, said that in view of the history it would not be right to regard the case purely as an application for a new licence. On the other hand, it was not right to regard it merely as a take-over. There was evidence of trade carried out by Mr. Ferguson during the period when he was Operating unlawfully. "We do not think we ought to disregard that, merely because of the circumstances." The .customer for whom the appellant operates under contract apparently had sufficient business to use another vehicle up to 50 per cent. of his capacity. Taking those two factors together, there was justification of granting a new licence,, and the appeal succeeded.
Customers Inconvenienced
T"customers of a Scottish haulier were inconvenienced not because he had too few vehicles but because, during the season, he concentrated on a coach business. This was contended by the B.T.C., who were respondents in an appeal by AlexandereMelville of Kirriemuir before the Transport Tribunal in Edinburgh on Tuesday.
Melville was appealing against a refusal of the deputy Scottish Licensing Authority to grant him an additional A vehicle to carry agricultural produce.
Mr. D. Y. Abbey, for the appellant, said there had been ample evidence of need before'the Authority and in refusing the application he failed to have regard to the interest of the public. •
An observation by the LA., that the evidence produOd showed no increase in business, was illogical, said Mr. Abbey. Melville had been working to full capacity for two years. In view of this, apart from an increase in rates, there could not be any substantial earnings. It was not open to the Authority to say, as he did, that the evidence of. witnesses as to their difficulties had not convinced him.
Mr. A. B. Wilkinson, for the B.T.C.. said the fact that vehicles had been towed away because they were not fitted with mechanical loaders, as stated by one witness during the application, suggested there was no shortage of vehicles,
It was significant that the figures showed a decline during peak bus touring months and it had been given in evidence that Melville's lorry drivers had driven his coaches.
Disallowing the appeal, the president said that the evidence as a whole did not disclose a sufficient need for an additional A vehicle.