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Environmental refusal by LA challenged
Page 109
Page 113
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Duncan Lacy & Bros appeal
• THE APPEAL of Duncan Lacey & Bros Ltd against the decision of South Eastern Licensing Authority on environmental grounds to refuse its application to vary its operating licence by naming part of Horsted Keynes Industrial Park as its operating centre has been refused by the Transport Tribunal_ In a 14-page written judgment, the Tribunal concludes that the question the LA had to decide under Section 69D(7) of the Transport Act 1968, was whether the appellant's depot in the Industrial Park was suitable on environmental grounds for use as an operating centre for 10 vehicles.
In the Tribunal's judgment, on the whole of the evidence available to the LA summarised by the Tribunal he was entitled to find that the likely effects on the environment of the use of this depot for 10 authorised vehicles would be such that it would be unsuitable for use as an operating centre.
This appeal is therefore dismissed, as we announced on 21 December 1988. We then directed that our order should not take effect until midnight, 21 January 1989," says the Tribunal.
During the 1930s the use of the Industrial park changed from an apple store and processes ancillary to a canning factory to that of a hatchery. In 1983 Mid Sussex District Council, as planning authority, refused permission for a change of use to warehousing offices and storage on the grounds that that would attract significantly more heavy vehicles in the surrounding country lanes.
In 1986 the Duncan Lacey company held an 0-licence for 10 vehicles, seven of which were in possession, with the operating centre at Courtlands, Snowhill Road, Crawley Down. The appellant was also operating a subsidiary called Crystal Frozen Foods in Kent. Subject to planning permission, it decided to acquire the Industrial Park in order to move the Crystal Foods operation to It.
APPLICANT BUILT COLD STORE
...At operating centre The planning authority said it would oppose uses that would generate more vehicles along Cinder Hill and Horsted Lane. Duncan Lacey, the appellant company's managing director, explained it was intended to use only one unit for Crystal Frozen Foods. A second application for the use of the remaining buildings for light industry and storage was received from the company in October 1986. Both applications were granted that month.
Rodney Bruce Lacey told the subsequent public inquiry that Crystal Frozen Foods went into liquidation in January 1987. Lacey said that during 1987 the appellant built cold stores at the operating centre and decided in March 1988 to move the whole of its operations from Courtlands to the Industrial Park. It according
ly surrended the Courtlands lease at the end of June 1988.
However, the company made no application to vary its licence for a new base in place of Courtlands till May 1988. The application, advertised in the 11/fid Sussex Times, attracted a number of vigorous "representations" from a wide radius. An interim licence to use part of the Park as an operating centre, pending its application for variation, was refused. A subsequent request made on the appellant's behalf by the solicitors then acting for it, was granted. In the meantime the first respondent Mid Sussex District Council had made an objection to the grant of the application and the LA decided to hold a public inquiry in August 1988.
No representations were received from those living in close proximity to the operating centre, says the Tribunal, but seven respondents had made written representations complying with Regulations 18 and 19 of The Goods Vehicles (Operators' Licences. Qualifications and Fees) Regulations 1984.
DID THEY LIVE WITHIN VICINITY?
LA inspected locality The LA had to decide whether the grounds in the representations (Regulation 18c) and any evidence established that they owned or occupied land within the vicinity of the operating centre, and if so would environmental effects from use of the centre, prejudicially affect the use or enjoyment of that land (The Transport Act 1986 S69(d) (5) and (6)).
The LA, who had inspected the locality, ruled that none of them lived within the vicinity of the base and therefore he could not take any evidence they might give into account under Section 69(D)(5) and (6) of the Transport Act 1968. He decided. however, without any dissent from Mr Linington of the Freight Transport Association, who then appeared on behalf of the appellant, that they be called on behalf of the first rspondent in support of its objection having regard to the decision of the Transport Tribunal in Appeal X25 (Hay and Straw Express Services) that an LA can have regard to a wider area of land in considering environmental grounds than he is limited to in considering a representation.
The LA gave an extempore decision at the close, refusing the application. "The LA seems to have considered first the adverse environmental effects of commercial vehicles passing up and down Cinder Hill and Horsted Lane generally," says the Tribunal, and then to have considered whether the grant of the application would have any greater adverse effect on the environment than if it was refused."
David Rae, solicitor on behalf on the appellant company, appealed from the refusal of the application. Finding against Rae's appeal points, the Tribunal says the LA was right in finding the evidence of the representors, who did not live in the vicinity, relevant. They were not disqualified from acting as witnesses for the first respondent.
In the Tribunal's judgment the LA was not open to the criticism of failing to give proper weight to the existence of planning permission_ The LA was right to leave out of consideration in reaching his decision the possibility that the company might run the authorised vehicles in from another operating centre at the beginning of the day and back again in the evening. He rightly limited his consideration to the known effects of granting the variation.
The appeal case claimed that the LA misdirected himself by taking into account that if he granted the application he would be creating a precedent for the use of the operating centre by other operators.
In the Tribunal's judgment the LA was entitled to take into account to such extent as he thought proper that if he granted the application he would be unable, under Section 68B(5) of the Transport Act 1968, to refuse any future application by the appellant or any other future occupier of the operating centre unless the grant of that application would result in a material change.
It was also claimed that the LA misdirected himself in that he could and should have granted the application and imposed conditions to reduce adverse environmental effects. But the Tribunal says it was made clear the appellant was not willing for any condition limiting the time at which authorised vehicles could leave in the morning.
Lastly the Tribunal examined at length the claim that the LA misdirected himself when he stated that the appellant "contributes something like 10% to heavy vehicle movement in this lane". This misdirection was not alleged in the original notice of appeal or the amended one, but no objection was taken by the respondents to it being raised before the Tribunal. In order to make a detailed study of the evidence, and in particular census information, the Tribunal deferred its decision for 14 days. The Tribunal found that the LA had not misdirected himself on the point.