1937 Appeal Decision Flat Will Affect 1938
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APPEAL decisions were given in 1937 that will have a marked bearing upon road-haulage operations in 1938 and subsequent years—unless, of course, the existing law is amended in the near future. The past year has seen the continued building up of the volume of case law in which the road-transport industry has become submerged and by which the Road and Rail Traffic Act has become obscured. Further points of principle have been determined and various earlier decisions distinguished.
The year 1937 will go down in roadtransport history as a milestone, if only as that in which the famous BoutsTillotson No. 2 decision was announced: This ruling has been much quoted by both road and rail, and has established itself as one of the leading precedents in goods-transport licensing.
One of its most important functions was to define the onus resting upon the applicant for the renewal of an A licence. According to the opinion expressed by the Appeal Tribunal, such an applicant should satisfy the Licensing Authority that, during the currency period of his expiring licence, the authorized vehicles have been regularly and fully employed. " Fully employed" does not imply maximum loading on each journey, but that, on the journeys they have made, the loads carried hate been reasonable.
• Receipts and Tonnage • The applicant should also satisfy the, Licensing Authority as to his gross receipts and tonnage carried during the first currency period, and that there has been no material change in the nature of his business.
Another vital point cleared up by this decision is that relating to the perpetuation of the status quo. The Tribunal maintained that this should not he continued beyond the first currency period.
The Tribunal's comments in the Smart case on the question of wasteful competition were extended to cover applications for renewals, as well as for variations, it being held that, generally speaking, it would not be in the public interest to authorize facilities in excess of requirements. It was not suggested, however, that, if an objector proved his case, he had any legal right to require an application to he dismissed.
Although the Tribunal did not attempt to define the phrase " suitable transport farilities," it held that they should be suitable for carrying the goods which a person requires to be transported and suitable to that person on the occasions when he needs them. The facilities must also be suitable for current industrial and commercial conditions. In the Modern Haulage, Coleman and Stuart appeals, the Tribunal laid down that the three requirements to be satisfied by established hauliers running trunk services referred also to applicants providing other facilities. The reservation was made, however, that special considerations might arise in the case of applications concerning vehicles for collection and delivery.
It was held that, if an A-licensee normally used his vehicle outside the area originally specified by him in applying for a licence, the renewal application should be refused, unless need were proved. In the Hargreaves case, the appellant changed from local work around Blackburn to long-distance haulage from Liverpool and, as he could not prove need for the new services, he lost his licence.
• Business Changes •
This ruling concerning changes of activity was amplified in 0' Sullivan's case, when the Tribunal suggested that the statement of proposed area of operation, made when applying for the expiring licence, should be compared with that made on the renewal application or in evidence in support of it.
If such a comparison were not sufficiently informative, the Licensing Authority might reasonably inquire as . to the districts in which, or places between which, the applicant normally used his vehicles at or about the time when he applied for the expiring licence. It would, however, be going too fax to suggest that the Authority should take into consideration circumstances relating to the business prior to the date of the previous application.
The Tribunal agreed with the Metropolitan Licensing Authority's view, expressed in the Barnett Joel case, that an applicant who originally exaggerated his normal area of operation should not he treated differently from one who more accurately described his activities.
An operator who purchases a business of a different class from that which he has hitherto carried on, cannot be held to be starting a new business, said the Tribunal, in the Ball decision.
Various other points are common to certain of the appeals mentioned earlier. One of the most important concerns the position that arises should there be an interruption in the operation of a haulage business.
• Continuity Broken •
In the Coleman and Modern Haulage decisions, the Tribunal did not agree, as a general proposition, that, as an applicant could not prove that his vehicles had been fully employed during the first currency period if there had been a substantial break in the continuity of his business, he should, on renewal; make out a prima facie case of need, otherwise the licence should be refused.
At the same time, it was held that a substantial interruption in the operation of a business was an important factor and that a licence should certainly be refused' if a business had been abandoned: The word " abandoned" was used advisedly, because the Tribunal felt that there were, no doubt, cases of breaks in the continuity of a business, such as those caused by illness or trade fluctuations, which could not properly be said to have involved the abandonment of an undertaking.
In Hargreaves's case, the business was interrupted because the vehicles were not fit for service, but arrangements were made for other carriers to continue the appellant's work during the interval. This was not regarded as the abandonment of the business, although, as mentioned previously, the appellant lost his licence on another point.
The rates question is one that has, on countless occasions, been raised in relation to licence applications, but the Appeal Tribunal has done much to clear the position in the Bouts-Tillotson No. 2 and Stevenson decisions.
In the former case it was pointed out that the legislature did not intend that a Licensing Authority should, when exercising his discretion, have regard to the fact that, in many instances, goods can be and are carried by road at rates which, although economic to the haulier, are lower than those at which the railways can handle the same traffic.
• Rates Inadmissible • Later, in the Stevenson decision, the Tribunal added that questions relating to rates should not be taken into consideration when deciding whether or not an objector has proved that suitable transport facilities exist. This opinion did nut, however, alter the views previously expressed by the Tribunal in the Bouts-Tillotson No. I decision, concerning uneconomic rates and false traffic.
Another factor not to betaken into consideration in deciding the suitability of transport facilities is, according to the Stevenson case, the provision of warehouse accommodation.
Warehousing was also an issue in Brown's case. The Tribunal then stated that, if persons who stored furniture or household effects in the appellant's depository required them to be removed to -places outside the radius specified by the Licensing Authority, they should be able to employ him for that purpose..
Another contentious issue that has been raised in various appeals concerns the onus resting upon an applicant for a variation. In Ridgewell's case, it was held that an applicant must prove that there had been an increase in hit business, an expansion in the businesses of his customers or in the industries for which he carried goods, and that some of his clients had been inconvenienced by the shortage of transport.
In the Stevenson decision, the Tribunal qualified this statement by saying that, although in normal cases these three obligations should be met, there might be exceptional instances in which the use of additional vehicles might justifiably be authorized.
Lyner's case showed that a licensee who uses some of his vehicles on services where facilities are already excessive cannot justify an application for additional tonnage by proving that the remaining machines are insufficient for other work for which services are not in excess of requirements.
In this appeal, incidentally, it was decided that an appellant against the variation of a licence is entitled to' a decision by the Tribunal, although the licence has expired before the appeal can be heard, The material date as upon which the Tribunal decides the rights of the parties is that of the decision which is the subject of the appeal, and not the date of the appeal hearing.
One of the variation appeals' that brought into prominence the question of hiring was that of Payne versus the L.M.S., L.N.E. and G.W. Railway companies. The appellant tried to justify additional tonnage on the ground that the co-operative societies for which he worked allowed only vehicles driven by trade unionists to have access to their premises. This was held not to be a special circumstance, within the meaning of previous decisions, such as would justify a grant to dispense with the need for hiring.
• No Fixed Ratio •
On the question of replacing horses by motors, the Tribunal ruled in W-atts's case that a Licensing Authority should not authorize a change-over in any fixed ratio, especially when vehicles were to be used for collection and delivery, because conditions under. which those services were provided varied according to topographical characteristics and other factors.
Previously, in Reed's case, the Tribunal ruled that a Licensing Authority must take into account not horses or vans by themselves, but the vans as horse-drawn vehicles. It was immaterial whether an applicant hired horses or used animals of his own.
TheTribunal again emphasized, in the Watts appeal, that special factors must be taken into consideration when dealing with collection and delivery services. One in particular is the character of the area in which the setvices are proposed to be operated.
The vexed question of " transfer " applications, which has recently been
the subject of litigation, was brought into prominence in the appeal of Wasey versus Barwick and others. In this instance, the Tribunal held that, in the absence of special circumstances, a person who has agreed to purchase an A-licensee's business should be authorized to use vehicles under a similar licence.
It was held that the fact that Mr. Wasey held a B licence was not a special circumstance to justify. the refusal of an A licence to continue the business he had contracted to buy.
The well-known Boston Haulage decision was amplified by the explanation that it was not necessary to prove that all the vendor's customers were prepared to employ the purchaser, evidence that a reasonable number of clients was prepared to transfer patronage being sufficient.
• Service Tonnage • Several cases have made it clear that, in the Tribunal's opinion, small operators who require vehicles for service purposes, when regular machines are undergoing repair, should take advantage of Regulation 15 of the Goods Vehicles (Licences and Prohibitions) Regulations. In Wilkinson's appeal it was shown that a temporary licence could be obtained in substantially less than 56 hours.
This view was repeated in the McNamara decision, with the proviso that large operators should he allowed a reasonable proportion of additional vehicles to meet the need for overhaul and repair.
The only decision defining the onus resting upon the applicant for a Contract A licence is that of Edwin Clark, According to this ruling, the applicant must satisfy the Licensing Authority on the following points:—
(1) That there is a contract between him and the customer; (2) that the customer is a person carrying on a business (but not concerned in transport or in arranging for the carrying of goods); (3) that the contract is for the carriage of goods for or in connection with the customer's business and covers a continuous period of not less than a year; (4) that the vehicles to be used will be employed exclusively for the purposes of the contract.
• Grant Compulsory • This particular case concerned work for a municipality, and it was held that a written invitation by the council for tenders, the actual tenders submitted, the agreement under seal, the specification and the conditions of tender con.stituted a contract between Mr. Clark and the council. If an applicant can supply the proof required, and if he be a fit person to receive a licence, his application must be granted. ,
The question of the Contract A licence is viewed from another angle in the Miller decision. There the Tribunal held that, before refusing an application for an A licence on the ground that application should have been made for a Contract licence, the Licensing Authority should be completely satisfied that the applicant's vehicles have been and/or will be used exclusively or carrying the traffic of a partieulat person.
The case of the Metropolitan Transport Supply Co., Ltd., brought forth the ruling that a Contract A licence cannot be granted on the strength of a contract between a carrier and a holding company on behalf of the latter's subsidiaries. The contract must be for the transport of the goods of the person, entering into it.
The position of forwarding agents and clearing houses is referred to in the Shaw Lovell appeal, in which the Tribunal was inclined to agree that, in the case of such businesses, the transport industry generally must be safeguarded. The Tribunal extended the application of this view • also to wharfingers who do not carry on their businesses after the manner of C. Shaw Lovell and Sons, Ltd., or who are unable to submit the proof provided by that company, • " B " Onus •
B-licensees are affected by the
Sutcliffe decision, in which the Tribunal repeated its dictum in the Breeze case. It was laid down that, on a B-licence renewal application, d Licensing Authority should have regard to the character and extent of the hire or reward work of the applitaut during the currency period of his previous licence, and to the proof, of need for
continuing to operate for hire.
In Smalley's case, which also con cerns B-licensees, the Tribunal could not agree that Mr. Smalley's renewal application should have been dismissed if the evidence proved that his own goods could be quite satisfactorily carried by existing transport, and that there was no other sufficient reason why he should carry his own goods.
An ancillary user, the Tribunal added, should not be authorized to carry goods for hire or reward, unless the evidence showed that there were not in existence suitable transport facilities for carrying the goods that he proposed to transport for hire or reward, Further light was thrown on the question of " previous conduct " by the Moore appeal.. In this instance it was held that breaches of licence conditions that would justify the revocation of a licence were " previous conduct " of an applicant in his capacity of a carrier of goods.