THE APPLICANT'S DILEMMA
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By Ralph Cropper,
M.Sc. (Econ.), B.A., A.M.Inst.T.
WHEN a special A licence is being transformed into an A licence, should the normal user of the vehicle be described as " General goods, Great Britain?" That question is exercising the minds of hauliers and its resolution is far more important than a quick judgwant might suggest.
An A licence is, of course, an open licence, enabling the carrying of any .goods for hire or reward, anywhere in Great Britain. In conformity with this right, it is an added attraction to have the licence enshrined under the words: "General goods, Great Britain." Anything less seems to detract from the all-embracing coverage of an A licence.
The application form for an A licence requires an answer to the question as to the "facilities which you propose to provide." There is also a note that the answer should be given as precisely as possible and that "such terms as 'General goods, Great Britain' should not be used if the actual operations proposed to be undertaken are more confined."
A Cleft Stick
This presents a dilemma for many applicants. They may not like to have to answer at all, but the 1933 Act itself gives good ground for this information being required on the application form.
. The Act says that a person applying for an A or a B licence shall sNcify "the facilities for the transport of goods intended to be provided by him under the licence for other persons, including particulars of the district within which, or • the places between which, it is intended that the authorized vehicles will normally be used for the purpose of carrying goods for hire or reward."
The basic thought underlying this provision seems clear enough. After all. the Act seems to be saying, a public carrier's A licence is to offer services to the public and it is only right that a description of those services should be declared to the Licensing Authority.
Thus can be seen the way in which applicants are persuaded to insert descriptions confirming their normal operations. The Act initiates the conception of the restriction, which is reinforced by the application form, and it is not long before the railways step in and press the matter as far as they can.
Immediately one says anything less than " General goods, Great Britain," that is the beginning of a restriction. But, then, the whole of licensing rests on restriction.
However flourishing a haulage business may be, the wise operator has always to be prepared for a rainy day. If he has to sell out, the A licences Will have more attraction to possible purchasers if they are completely unfettered—if they retain the freedom of "General goods, Great Britain." Anything less must bring a measure of contamination.
So the next question is: how far should the applicant go in defining his work? Recent applications to replace a special A licence by an A licence, where the normal user has been described as "General goods, Great Britain," have been encountering more pressing opposition from the railways.
A Tall Order
The railways take the line that the applicant should state what he has been doing. The small operator is faced with a tall order to maintain that he is prepared to carry all kinds of goods anywhere in Great Britain. Does he carry livestock or furniture, would he take coal or indivisible loads? If he is based in the south of England, how often does he run to Scotland? • So, in the face of railway opposition, he often has little alternative but to agree to a closer definition. He may agree on "general goods" with a mileage radius, or between certain districts, or within certain counties.
Often the operator consents to a modification at a meeting of a roadrail negotiating committee. The railways are content because they have been able to tighten the screw, even if only a little.
But many a haulier will be asking himself why he should thus be corn
pelled to kowtow to the railways. He may recall that the Act says that it is the applicant who has to define the normal user. He is right. There is nothing in the Act which gives any power to the objectors to be able to alter the operator's definition of normal user.
The Transport Tribunal have upheld this point and have stated that not even the Licensing Authority can compel an applicant to alter the words with which he has chosen to describe his normal user. The most the Licensing Authority can do is to invite the applicant to define his operations more precisely.
Unfortunately, events do not support theory. First, if the operator does not modify his description, the objectors press the case in court. Under cross-examination the applicant cannot resist answering questions about the work he has been doing, and then there is a fuller and more accurate account of all his activities than if he had started by giving a closer definition. And this remains on the record for all time.
Licence Might be Refused
Secondly, in the ultimate it rests with the Licensing Authority whether the licence is granted at all. I do not know of a case where the Licensing Authority has refused an application on these grounds. But if, for example, an operator is primarily engaged on carrying fish from Billingsgate Market and he still claims that his normal user should be described as "General goods, Great Britain," the Authority might consider that the haulier had failed to " specify the facilities for the transport of goods intended to be provided by him," and he might refuse the licence.
In some cases, the operator almost tumbles over himself to introduce a restrictive definition. By announcing his intention of carrying traffics which neither the railways nor Bri tish Road Services are likely, to be much concerned with, he may hope either not to receive objections or, if lodged, to be able to deal with them more adequately.
Thus, Skelton Transport described their intended work as "raw bones and fat, London and Widnes," and showed that neither the railways nor B.R.S. wanted this traffic and had in fact refused it. Undoubtedly it helped them to get their A licence.
Let us consider this case a little further. The A-licence vehicles now granted to Skelton Transport can in fact be used on any haulage work, and there is no power with the Licensing Authority, or with anybody else, to reprimand or prosecute Skelton's for so doing. All is well so long as they continue that work.
Difficulties arise only if they want to change to other work. If there is a change in customer requirements, arising out of variations in trade in that customer's industry, it is natural fOr the haulier to wish to find other work. Whilst this is a perfectly natural wish, it is really contrary to the first principle of licensing. After all, the licence was granted becnuse _need was proved for certain work. The logical conclusion from that fact is a bitter pill to swallow, namely, that if that work dies out, the haulier should surrender his A licence.
Every licence holder looks upon his licence as an asset, which would have a realizable value" at an appropriate time. It is at just such times that any normal user other than" General goods, Great Britain "cart be embarrassing.
" Normal " is an ambiguous word. It is just about as precise as saying that something is as large as a lump of coal. Applicants are often told, by those representing objectors, that it is' intended to represent about 60 per cent., or two-thirds, of their work. Any such figure is arbitrary. There is nothing in the Act, there is no ruling of the Tribunal on the subject.
Part of Normal User Let us take the case of a haulier who works mainly in the Midlands and Metropolitan Area and assume that he has one job every year to Inverness. He may well claim that the Inverness traffic is part of his normal user. But where does it get him?
There are three courses open to him. He can: (1) Stand firmly on "General goods, Great Britain." If so, the objectors may press their objection and he has to tell the Licensing Authority in court just what his activities are. He has won a Pyrrhic victory. He has retained the label of his operations, but everybody knows the exact nature of the contents of the bottle.
(2) Give up and content himself with "General goods, Midlands and Metropolitan Area." He can still do the Inverness job, but the blemish is on the licence. (3) Find some more precise words to define his normal user, such as "General goods. Midlands and Metropolitan Area, and one load of exhibition materials annually from Birmingham to Inverness." This is the worst of all; it makes the normal user even more restricted.
There have been examples in recent months where the Tribunal have been moving towards more precise definitions of normal user. In the case of Highland Haulage, Ltd., the Tribunal intimated that the declaration of normal user in the application would be amended. so as to state that 70 per cent. of the goods measured in ton-miles would be carried within Scotland and 30 per cent. measured in ton-miles in England and Wales; the description of goods would be: "All classes of goods."
One hesitates to imagine how Highland Haulage can keep to this proportion and what records they are going to maintain. Unfortunately for them, it gives a magnificent lever for the objectors to use against them in subsequent applications.
No Firm Definition
On another occasion the Tribunal refused to be drawn into a too close definition of normal user. This was in the case of David Munro, of Fife (July, 1956), where the Tribunal were asked the direct question as to how frequently "occasional use" outside the normal user could be permitted.
At first the Tribunal would give no indication; but when counsel for the haulier stated that his client would require to go at least twice a month to destinations outside his normal user, the president indicated that that might pass as correct.
The case of A. H. Rumble and Sons, of Reading, brought to light two further aspects of this problem of normal user. The Tribunal pointed out that the Licensing Authority was mistaken as to the extent of Rumble's statement of intention as to normal user. He assumed, said the Tribunal, that they were undertaking to confine the use of their vehicles on A licence to the carriage of the traffic of only two named customers. On that assumption he decided to refuse the application, suggesting that a B licence would be appropriate.
The Tribunal added that Mr. G. J. Rumble said in evidence that more than 90 per cent, of the work he intended to do with the vehicles would be for his two former A-contract customers.
According to the Tribunal, the Authority was wrong in thinking that the terms of Section 9(4) of the 1953 Act did not apply, and that it was Parliament's intention not to alter the meaning of normal user for ordinary A-licence purposes. A Licensing Authority was expressly given power to suspend or revoke an A or B licence in the event of any statement of intention or expectation by an applicant not being fulfilled.
There Was no ground for supposing that Section 9(4) applied only to special A licences. A breach of this section could lead to revocation or suspension of an A licence.
The first point to note is that the Tribunal consider that statements rnade.by Mr. Rumble in evidence are part of the description of normal user. Thus, an applicant's statement of normal user is not confined to what he puts on the.application form in answer to Question 4; it also includes any further explanation which he may make in court.
The second point is the reference to Section 9(4) of the 1953 Act. This section greatly extends the powers of the Licensing Authorities to suspend or revoke licences. They are now empowered to take this drastic action if the applicant makes a statement of intention which is not fulfilled.
In other words, if Mr. Rumble's statement that more than 90 per cent. of the work he intended to .do would be for his two former A-contract customers did not turn out to be correct, and he did other work for more than 10 per cent. of the time, the Licensing Authority could revoke the licence under Section 9(4).
Sinister Outlook
This can be a frightening situation. Reverting to Highland Haulage, Ltd. it makes their position look Most sinister. How strictly are Highland Haulage to keep to the 70-30 per cent. basis? If the proportion of their traffic turns out to be 71 per cent. for Scotland and only 29 per cent. for England and Wales, has their statement of intention not been fulfilled?
I am sure that no Licensing Authority would dream of taking the drastic action of suspending or revoking the company's licence for such a small divergence. But how much more variation can be permitted?
Thus, not only are Highland Haulage kept in a strait-jacket in the proportions of their traffics, but they have the sword continually over their heads if they depart very much from the straight and narrow.
In this case, in particular, the Tribunal have clearly brought to light the terrible predicament forced on hauliers by this problem of normal user.