How Far Will Rates Count in Licensing?
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THE important question of the influence which rates may have on the consideration of licence applications by the Licensing Authorities was one of the subjects examined by Mr. T. D. Corpe at the annual conference of the National .Association of Furniture Watehousemen and Removers at Torquay on Wednesday. He was dealing with "Licensing—the Effect of the Transport Act, 1953, on Procedure at Public Inquiries."
The general direction contained in Section 9 (I) of the Act that the public interest should come first by putting the interests of persons requiring transport before the interests of providers of transport, gave statutory recognition to what had been the practice of Licensing Authorities for many years, he said. The amendment did not, therefore, affect procedure at public inquiries.
Section 9 (3) (a) of the 1953 Act shifted the onus of proof of an objection on to the objector, instead of placing it on the applicant, who in the past had been called upon to prove matters largely outside his knowledge. " In other words," said Mr. Corpe, "the objectors must now prove that ' suitable transport facilities are—or would be— in excess of requirements' if the application was granted, instead of the applicant having to prove that this would not be so.
No Guidance from Tribunal
" This does not mean that an applicant can walk into court, ask for a licence and get it unless the objectors can prove there is no need for what is asked for. An applicant must still make out a 'case' for what he is asking. Different Licensing Authorities hold slightly different views as to what constitutes a 'case' and as yet no guidance has been forthcoming from the Appellate Tribunal.
"Generally the view is that a newcomer must call evidence from potential customers who want to employ him, not because of the colour of his hair or other fanciful reasons, but because they think he can give them a better service. For this purpose letters arc held to be of little value and customers are required to give evidence in Court which cart be tested in crossexamination.
"An existing haulier applying for additional tonnage must show that his own business is increasing due to increasing demands for transport from his customers. It is then for the objectors to prove what the alternative facilities are and that they are suitable n6
and adequate. If after he has heard all the evidence, the Licensing Authority is in doubt as to whether the objectors have proved the grounds of their objection, he should grant the application.
"Before this amendment became law, if the Licensing Authority was in doubt, he was entitled to refuse the application—because the onus of proof was on the applicant.
"As far as procedure in Court is concerned, objectors can no longer leave it to their advocate and not bother to turn up. It is necessary for objectors to be in Court in order to sustain their objections and they should be armed with figures to show what transport they had available before and after the date of the application in order that the Licensing Authority can determine what was the availability at the date of the application. They should also be able to show that the available transport is suitable' for the requirements of the customers supporting the application."
In considering the comparative suitability of the transport provided by an applicant and by an objector, the Licensing Authority must take into account the "relative efficiency, reliability and adequacy of existing facilities at the date of the application and the facilities which the applicant will provide if his application is granted," and, to the extent he thought proper, the question of charges.
"With the exception of charges, this amendment again gives statutory recognition to the practice of the Licensing Authorities when considering the question of suitability," Mr. Corpe observed.
In the Dark
" The question of charges is, however, entirely new, and, as yet, we are all in the dark as to how the Licensing Authorities will interpret this amendment. Hitherto the Licensing Authorities have generally not been concerned with the question of rates unless:— " (1) An applicant carried goods at rates uneconomic to himself. This was termed ' false ' traffic and was disregarded in considering the question of need.
" (2) An applicant obtained traffic by the inducement of a lower rate. This was termed 'abstracted' traffic arid was also disregarded.
"(3) A Licensing Authority could investigate rates where it was alleged that they were excessive and might hold that suitable transport was unavailable if he found that the rates charged were excessive. "Now the Licensing Authority may consider comparative charges to such extent as may in all the circumstances appear proper '."
At first glance, it would seem that a newcomer seeking his first licence or an established haulier asking for additional tonnage, was entitled to succeed if he could offer to carry goods cheaper than his competitors.
This view must, however, be wrong, otherwise any C-licence holder could obtain a B licence to carry return loads on the ground that he could do it more cheaply because the outward journey was paid for by his ancillary business. Such a concept would, of course, destroy the delicate balance of transport between road and rail, between hauliers themselves and between existing licence holders and newcomers.
"So far the Licensing Authorities have been very canny ' on this question and have avoided committing themselves," Mr. Come pointed out. Even the Transport Tribunal, in a recent appeal in which it seemed inevitable that the issue must be decided on question of rates, neatly by-passed it.
Why Service is Cheaper
I do not think that Licensing Authorities will decide an application purely and simply on the question of which is the cheaper service," he said. "I think they will probably consider why a service is cheaper and that they may allow the question of charges to influence them in certain circumstances, of which the following are examples:— " (1) Where traffic would not pass but for the cheaper service offered by an applicant.
"(2) Where cheapness has influenced a trader to give up C licences and employ a professional haulier.
"(3) Where an applicant by means of a more efficient vehicle for the job can cut down operating costs and labour thereby producing a cheaper service, viz.: bulk haulage Of grain in special vehicles. obviating the use of sacks and much of the labour in loading and unloading; or the handling of furniture in containers.
"(4) Where an applicant is appreciably nearer to the job, thus saving dead mileage.
"(5) If an applicant can offer a more efficient, reliable, adequate and perhaps cheaper service he will be favourably considered,"
A further amendment to the Act contained in Section 9 (4) provided an additional ground for the revocation or suspension of a licence "if an applicant for the purpose of his application has made or been responsible for making any statement of fact which (whether to his knowledge or not) was false or any statement of expectation which has not been fulfilled."
"Theoretically an admirable remedy for 'breach of promise' by a haulier, but the practical value is extremely doubtful," commented Mr. Corpe.