Railways Retract in Their Attack
Page 45
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WILL the Appeal Tribunal endorse IT an attempt by the railway companies to jeopardize the future security of the road-haulage industry? For the past few weeks, this question has been uppermost in the minds of all responsible operators, but their fears may have been falsely aroused.
The issue has arisen on the 'appeal by the G.W. and L.M.S. Railway companies against the granting of the Variation of an A licence to Mr. G. Smart (trading as the Smart Transport Co.), 28-30, . Argyle Road, Bristol, by the Westept • Licensing. Authority. CommeneiMent of the hearing took place last month, -but,' in view of a vital submission for -the railways, it was adjourned until Monday of this week.
Automatic Dismissal.
At the earlier sitting, Mr. B. de H. Pereira argued that if an objector proved that there were suitable transport facilities in the district in, which, or places between which, an applicant operates or proposes to work, the application should, in law, be dismissed. He applied this submission to applications for discretionary tonnage, or for additional vehicles, and even to cases where an applicant is carrying for, or proposes to carry for, customers with whom he was dealing in the basic year, The Appeal Tribunal gave notice of the issue to Associated Road Operators, Conunercial Motor Users Association, Furniture Warehousemen and Removers Association, National Road Transport Employers Federation and Scottish Commercial Motor Users Association (rePresented at the resumed hearing, on Monday, by Mr. N. R. Fox Andrews), Transport and General Workers Union (represented by Mr. Oliver), and the Scottish Transport Contractors Federation, for Which Mr. Donald Mackay appeared.
Continuing the case for the Smart concern, Mr. T. D. Corpe disagreed with the submission of railway counsel that the Hawker principles did not apply in this case. On an application for extra tonnage by an established haulier, se said, it was immaterial whether goods were more conveniently carried by road than by rail, if the applicant satisfied the -Ridgewell onus.
,Approval by Tribunal.
Mr. A. Tylor, for the railways, argued theproposition put forward by Mr.
Pereira at the earlier hearing. This submission was, said Mr. Tylor, substantially endorsed by the Tribunal in Dunnett's case. A Licensing Authority was not entitled to authorize a vehicle which would cause transport facilities to be in excess of requirements.
Mr. Tyler began to retract when he ;said. that, because a licensing Authority. was bound to consider an objection,• he need . not necessarily reject•the application ; the nature of the
objection must be considered. Fos
Instance, it would not be reasonable to contend that, because a slight technical breacli of the conditions of a licence had occurred, the application should at once be refused in tote.
Section 6 (2) of the Act provided that an. Authority should, in exercising his discretion, have regard primarily to the interests of the public generally, including those of persons requiring and providing transport. Under that section, an Authority had not merely. to consider the case of competing parties; the interests of the man in the street required that heavy . road vehicles should be reduced to a minimum, commensurate with the needs of trade and industry. Moreover,. it was not in the interests of operators that there should be wasteful competition.
Representations from Public.
Counsel went to some pains to show, by precedents, that, where the phrasing of an Act is vague, a court is entitled to read into it such words as would enable the purposes of the Act to be given effect. Although a member of the public had no statutory right of objection, any representation which he might make to a Licensing Authority should be given consideration, otherwise the Authority would not be carry ing out his public duty.
To construe the Act in the manner
suggested by Mr. Pereira would not fetter the Authority's discretion, because he would be entitled to grant increased tonnage on the ground that, in view of the nature of the business concerned, existing facilities, although adequate, were not suitable. The Authority would also have to consider whether it would be in the public interest for an existing operator to be left with a useless vehicle.
Upon being asked a straight question by Mr. Rowand Harker, K.C., chairman, Mr. Tylor countered by saying that he had not come to the court prepared to deal with the enforcement of the principle enunciated by Mr. Pereira on applications for renewals, although it would still hold good. He wished to argue the case on the basis of first applications and applications for variations within the first currency period. He desired to leave open the argument regarding renewals until a suitable occasion arose.,
Mr. Fox Andrews declared that road transport, except in the case of the conveyance of special classes of goods, would, if the railway submission were given effect, be wiped out in a few years. He asked whether it was part
of the Tribunal's duty to lay down any such I alleged principle. The Tribunal should not make any pronouncement which would fetter a Licensing Authority's discretion.
If Mr. Tylor attempted to retract from the previous submission by excluding applications for renewals from its purview, the railways' whole case fell to the ground. Unless the railways said that trucks were 'available and must be filled, their submission ceased to have an effect, and all the Tribunal was asked to do was to request the Authorities to read the Act before attempting to apply it !
That Word " Suitable."
Counsel submitted that the word "suitable," in Section 11 (2), had a wider meaning than sit:11ply. " adequate," and that the word "requirements " applied not only to applicants and objectors, but, to other parties. There was nothing in the Act demanding that healthy competition should be eliminated, but the railways' latest attack was designed to that end.
Mr. Fox Andrews continued by remarking that, if the Act were obscure, the Salter Report should, according to Mr. Tylor, be consulted to find out what was intended. It was not right to consider the Salter Report for that purpose. Mr. Fox Andrews could see no distinction in the imposition of the railway principle on applications for first licences, renewals or variations.
Mr. Harker commented that it was highly improbable that the Tribunal would attempt to define the words " suitable " or " excess of require• ments."
Mr. Oliver maintained that the Act was not vague in its wording, and supported Mr. Fox Andrews' submission that the word " suitable " did not mean simply "adequate." Mr. Mackay declared that the statute did not justify the railways' new attack.
Other Considerations.
On Tuesday, Mr. Corpe supported Mr. Fox Andrews' address, and expressed disagreement with 'part of the Appeal Tribunal's decision in the Dunnett case. He held that proof of an objection under Section 11(2) was not, in itself, conclusive.' There were other considerations to be weighed against it when the Licensing Authority was exercising his discretion.
The use of the Dunnett principle in applications for variations or renewals merely meant that the burden of proof was transferred from the applicant to the objector, but the applicant was likely to be defeated on the ground that excessive transport facilities would be' created, as in the Enston case.
Replying, Mr. Tylor did not attach much weight to Mr. Fox Andrews' argument, and suggested that Mr. Corpe's case was based an confusion of thought.