Chaos on Changes of Base
Page 1
Page 2
If you've noticed an error in this article please click here to report it so we can fix it.
HAULIERS are now Dispute on Meaning of Section tbeheginpnainngic tohassutetferwfiothr 58 of Transport Act May which the Transport Act was Damage Hauliers' Interests forced through Parliament in 1946 and 1947. Two High Court cases have already been fought over it, and further costly proceedings on one of them (W. H. Smith and London Transport Executive) are pending. Thus, the operator is being made to pay heavily, in fees for litigation, for the .guillotining of the debate during the passage of the Bill and for the ineptitude of the draughtsmen of a measure that may well go down to posterity as' the crowning indiscretion of the third Socialist Government.
Section 58 of the Act, Which refers to operating centres, is an outstanding example of bad draughtsmanship. Its incoherent wording has so far cost the Road Haulage Association about £1,500 in applying for a writ against the Metropolitan Licensing Authority in the case of B. E. Barrett, Ltd. It may yet involve the Association or some unfortunate individual in the further heavy expense in elucidating its disputed meaning.
The Price of Doubt Sub-section 1 defines an operating centre, and sub-section 2 deals specifically with operating centres in relation, to B-licence vehicles. Subsection, 3 is highly contentious and states:— " On an application after the passing of this Act for an A licence or a B licence, the applicant may, if he thinks fit, request the licensing authority to whom the application is made to specify a point in the area of the authority which is to be treated as the operating centre of the authorised vehicles and where such a request is made, the licensing authority may, if he thinks fit, specify as the operating centre for all or any of the authorised vehicles any such point in his area as be thinks fit."
The point specified may not necessarily be that requested by the applicant, and the Licensing Authority appears to have complete discretion in the matter. It is equally important to note that the haulier has wide discretion to decide whether or not he will make such an application. Sub-section 4 provides that "Where an A licence or a B licence is in force at the passing of this Act," an application in accordance with sub-section 3 may be made to specify an operating centre. Such applications had by regulation to be submitted by March 31 of this year,. .
Sub-section 5 has caused a. great deal of controversy and is worth quoting in full, if only for its tortuous wording. It states:— Where an A licence or a B licence was granted before November 28, 1946, and, immediately before that date, the premises from which any vehicle, being an authorized vehicle, , was in fact normally used for the purpose of carrying goods for hire or: reward were different from the premises specified in the application for the licence, the holder of the licence may, Within the prescribed time,' give notice in writing in the prescribed form specifying the premises from which the vehicle was normally so used immediately before that date to the licensing authority within whoie Ar ea the last-mentioned premises are situate and, if those premises are not situate ,within the area of the licensing authority by whom the licence was granted, to that licensing authority, and if the first-mentioned licensing authority is satisfied that the vehicle was normally so used from those premises immediately before that date, that authority shall notify the holder accordingly, and those premises shall, as from the date when that authority so notifies the holder, be taken to be the operating centre of the vehicle:.
Provided that a notice given by the holder of a licence under this sub-section may embody such a request to the first-mentioned licensing authority as is mentioned in sub-section 3 of this section, and, where such a request is made, that licensing authority may, if he thinks fit, specify as the operating centre for the vehicle any such point in his area as he thinks fit,"
What Section 58(5) Means The effect of sub-section 5 seems to be that a haulier who held an A or B licence before November 28, 1946, and wishes to change his base to the premises from which, immediately before that date, any authorized vehicle was normally used, may require that " new " base to be specified as the operating centre. If the changed centre be in a Traffic Area different from that of the original premises, both Licensing Authorities must be notified.
The proviso seems to imply that anyone who held a licence before November 28, 1946, may seek a change of base and have it specified as an operating centre, when applying for a licence, and, at the same time, enjoy the protection of sub-section 5 in the matter of an automatic grant. Then, however, the proviso contradicts itself by giving the Licensing Authority discretion in fixing the actual point to be specified. Sub-section 6 says that the Minister may, by A25
regulation, provide that an operating centre may be changed, either temporarily or otherwise, on application by the licensee during the currency of the licence.
As revealed in "The 'Commercial Motor" last week, some Licensing Authorities are maintaining that an operator who, when applying for the replacement of a defence permit by a licence, did not elect, under Section 58 (3), to specify an operating Centre, loses his right to the automatic nomination of a base. This interpretation ignores the words," The applicant may, if he thinks fit, request the Licensing Authority," used in sub-section 3.
Implications Changed The official view seems to be based on the argument that a licence renewed since November 28, 1946, is not a licence granted before that date. In fact, sub-section 5 merely says, "Where an A licence or a B licence was granted before November 28, 1946," and implies that its provisions cover any operator who held a licence before that date. It does not state that the licence in force at the time of the application for the specification of a new operating centre must have been current before November 28, 1946.
The Licensing Authorities have been by no means unanimous in their interpretation of Section 58, but there is every possibility that they will take the view that, if an operator wishes to change his base under Sub-section 5, he must specify the new operating centre not later than the time of the renewal of the licence that was current at November 28, 1946, or lose any protection that the sub-section may seem to afford him.
There are two other courses open to a haulier. He can either apply for a change of operating centre under Section 58 (6) of the 1947 Act, or apply under the Road and Rail Traffic Act, 1933. In both instances, there would probably be strong opposition from the Road Transport Executive and the Railway Executive.
As there is no appeal in this matter, the only method of obtaining satisfaction is to apply for a writ against a Licensing Authority. This is an extremely costly proceeding, and is one which the average operator could not afford to take. It is clearly work for an association, such as the Road Haulage Association, and stresses the importance of a strong organization to represent operators. No association can undertake costly litigation without the full financial support of its members and without the membership of every eligible operator.
Expensive Protection Difficulties in the administration of the Act are inevitable, and, on the assumption that the Minister of Transport would be unwilling to sponsor an amending Act to remove all doubt as to the meaning of the various. obscure sections of the Act, the R.H.A. will require extensive funds if it is adequately to protect the interests of hauliers.