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Onus of Railways Defined
Page 79
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IMPORTANT points of principle are raised in the decision of the Appeal Tribunal on a large group of appeals by David Auld and Co., and others, against the Southern Scotland Licensing Authority's decision to grant A licences to the London, Midland and Scottish Railway Co., in respect of yehicks to he employed from 23 bases. Seven of the appeals were abandoned, whilst, during the hearing, Mr. Middleton, for the appellants, admitted that two further appeals could not succeed and these were dismissed. Mr. Middleton also conceded that he could not, on the facts, succeed in two additional appeals, but he submitted that the Licensing Authority should be ordered to grant the L.M.S. B licences, instead of A licences.
Mr. Wilson, for the railway company, submitted that it was not competent tor the Tribunal to make such an Order, an argument with which the Tribunal agrees. The Tribunal expresses no opinion as to whether the Licensing Authority could, with the consent of the parties concerned, grant a B licence on an application for an A licence, or whether, by consent, it would be competent for the Tribunal to make an Order to that effect. These appeals are dismissed.
Four further appeals, relating purely 1.0 claimed tonnage, are also disallowed, the Tribunal stating that it has no jurisdiction to entertain them.
The remaining eight appeals are allowed. They related to the granting of discretionary tonnage, and Mr. Middleton submitted that there was no evidence to show that collection and delivery could be carried out more efficiently by the railway company's own vehicles than by those of sub-contractors. He also argued that there was art onus upon the L.M.S. to call evidence to prove this point for each base. In the Tribunal's opinion, the railway company did establish that collection and delivery could be more efficiently carried out by its own vehicles at the eight centres under review, and that it should be authorized to use from each of these bases an adequate number of its own vehicles.
An important aspect of the case was whether the Authority was justified, upon the evidence, in authorizing. the L.M.S. to use the number of vehicles permitted. The evidence given before the Authority, on this part-of the case, was general.
There was no evidence as to the tonnage of goods carried from or to any particular .base, or of the number or tonnage of vehicles sought to be authorized for collection and deli-Very.
The Tribunal refers to Section 5 (3) of the Road and Rail Traffic Act, 1933, the effect of which appears to be that, whereas general evidence may be useful, it' was the intention of the legislature that the application for each base should be considered on its own merits. The Tribunal concludes that the case in respect of each base must be proved and that general evidence, such as that led by the L.M.S., is not sufficient. • " The evidence that the vehicles in the possession of the railway company, at the time of the public inquiry, were fully employed," states the Tribunal, "is not evidence as to the requirements of the railway company at any particular base. . . . "
The Tribunal agrees that, on the tonnage figures proved by the L.M.S., the company is entitled to some increase over its claimed tonnage. On the ofher hand, it is impossible to decide on the evidence before the Tribunal exactly what increase the company is entitled to, or from what bases the respondent should be authorized normally to use those additional machines.
The applications in respect of these eight bases are referred back to the Licensing Authority for further hearing. During the hearing, the question whether, with regard to collection and • delivery, applications for additional vehicles could be dealt with on percentage bases, was much debated.
"In our opinion," remarks the Tribunal, "there is no direct relation between the tonnage of goods carried in c6lleetion and delivery and the tonnage or number of vehicles which should be authorized to carry those goods in the course of such service. . ."