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'No discretion' reminder by Transport Tribunal
Page 30
Page 31
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• The Transport Tribunal in a written decision has allowed an appeal by Barnet and Graham Ltd. (CM June 131 against the refusal of the Northern LA, Mr. J. A. T. Hanlon, to add two vehicles to a Contract A licence.
At the public inquiry in March, the LA also. refused two applications by the appellants in respect of the acquisition of a haulage business previously carried on by Mr. S. N. Snowden under two A licences.
The Tribunal said that the LA appeared to have taken the justifiable view that all three applications were made to ameliorate the consequences of an earlier decision by him. (The appellants had applied for 10 vehicles on (3 licence in July 1968 but because of previous convictions the LA had only granted six and announced he would vary the licence by adding the other four after 12 months. Barnet and Graham appealed but the appeal was dismissed by the Tribunal.) The appellants subsequently withdrew the appeal relating to the Snowden takeover because Mr. Snowden had found another purchaser, and the Tribunal's main consideration was given to the third part of the appeal which was argued by Mr. T. H. Campbell Wardlaw on the grounds that the LA was acting in excess of jurisdiction in refusing the application. He said the LA was obliged to grant the application by virtue of S.1 74(21(a) of the 1960 Act as applied to an application for a variation of a Contract A licence by S.176(2) of that Act.
The Tribunal said, "that under S. 174(21(a). once an LA had been satisfied by an applicant for a Contract A licence that any of the authorized vehicles would be used exclusively for a proper and relevant contract covering at least a year he was obliged to grant the application in respect of those vehicles. This was unless he was satisfied that, having regard to the previous conduct of the applicant in the capacity of a carrier of goods, the applicant was not a fit person to receive a carrier's licence, in which case the LA must refuse the application."
The Tribunal continued: "This special provision relating to Contract A licences excludes the provision in S.1 74(4)(b) relating to A licences. and B licences generally that in exercising his discretion under S.174 a Licensing Authority must have regard to the previous conduct of an applicant in the capacity of a carrier of goods. Under S.174-(2)(a) an LA can only refuse the application if the applicant's previous conduct has been so culpable that the LA can say that he is satisfied that the applicant is not a fit person to receive a carrier's licence."
It appeared to the Tribunal that the words in 5.1 74(2)(a) laying down the test of whether an applicant was a fit person to receive a carrier's licence were applicable without any modification to an application for the variation of a Contract A licence.
Continued the Tribunal: -In this case the LA did not say in the course of his decision that the appellants were not fit persons to receive a carrier's licence. Dealing with all three applications together, the LA said, 'I have to take into account in considering these applications the previous conduct of the applicants to see whether that justifies me in authorizing these
variations'. It thus appears that he was having regard in relation to all three applications to one matter, namely the previous conduct of the applicants in the capacity of carriers of goods generally.
"This was a matter to which he was required by Si 74(4)(b) to have regard only in relation to the two applications for an A licence under S.1 73(1)(c). It therefore appears that the LA did not apply his mind to the essential question in relation to the application for the variation of the Contract A licence, which was whether the applicants' previous conduct had been such as to make them unfit to receive a carrier's licence.
"It is unfortunate that the LA's attention was not directed to this difference between the two A licence applications on the one hand and the application for the variation of the Contract A licence on the other hand."
The Tribunal's conclusion was: "the only proper course is for us to determine this appeal on the basis that the LA was not satisfied that the appellants were not fit persons to receive a carrier's licence. On this basis, the only course open to the L4 under S,1 74(21(a) 1960 Act was to grant the application for the variation of the Contract A licence. We, in our turn, can do no other than allow this appeal."