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Scotch whisky appeals to Tribunal
Page 45
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• A cross-appeal to an appeal by three Scottish hauliers and BRS Ltd against a grant to Islay Transport Services of one artic unit and one trailer by the deputy Scottish LA was quickly disposed of by the Transport Tribunal in Edinburgh last week.
Mr J. B. T. Loudon, representing John A. Bell Ltd, J. and H. Caskie, B. Mundell and BRS claimed that the cross-appeal by Kelman of Turiff, the partners of whom are the same as Islay Transport, was not made according to the statutory regulations. Neither Bell nor Mundell had received notification of it and the notice as received by the others did not give the required names and addresses to whom notice of appeal had been sent. Although Mr Loudon said he was prepared to accept that notice of appeal may have been sent to Bell and Mundell, the Transport Tribunal ruled that the necessary regulations governing appeals were mandatory and the fact that relevant information was not included in the notice of appeal, was sufficient to dismiss it.
Mr A. M. Morison, representing J. and W. Kelman, trading as Islay Transport Services, remained undaunted, however, and claimed that when the Tribunal heard the appeal by J. Bell and others it was within its rights to grant to Islay Transport its original application, namely three artic units and trailers.
Mr Loudon said the deputy LA had granted Islay Transport one artic unit and trailer on A licence to operate to and from the Isle of Islay following a public inquiry on January 27 and 28 and his reasons were given in writing early in February. Mr Loudon said the deputy LA had granted the licence even though he had stated in his decision that there was no evidence of traffic increase, existing traffic was being coped with satisfactorily, there was no hardship being caused to existing customers and that Kelman was using one of its vehicles on the island outside its normal user and therefore irregularly.
The 23 vehicles operated by Kelman of Turiff were limited by its normal user to carry goods within the counties of Aberdeen, Banff and Murray, only. The carrying of malt to Islay and returning with whisky and grain contravened the normal user, said Mr Loudon as did the artic unit which was permanently based there.
Mr Morison claimed the artic unit had been based on Islay since the service was started in August 1968. He said that evidence given at the public inquiry stated by the deputy LA at the time had "by personal instruction" told Kelman that this would be a satisfactory arrangement, pending a licence application. He was unable to say whose evidence it was or give the name of the deputy LA concerned.
Mr Loudon said that Mr Bell operated two tippers and two artics on the island with authorization to operate a third. He had never refused business from Highland Distillers on the island or from Fisons Ltd, in Bridlington, Yorks, the customers for whom Kelman was now carrying.
Claiming that neither the deputy LA nor Mr Loudon had properly understood the application, Mr Morison said that although there was "a very great similarity of business" the applicant was not Kelman of Turiff but Islay Transport Services, the partners of whom were both the same. It was made to base vehicles on Islay, or at least reasonably nearby on the mainland, as the carriage of malt, whisky and grain could be regarded as in a special class of its own.
"A need has been shown for three vehicles based on Islay, assisted by two further vehicles from Kelman's present fleet," he concluded. Mr Loudon disagreed. "His whole argument had been based on a false understanding of the whole proceedings," he said, referring in particular to the Scottish Law of business partnership.
Should the appeal be allowed, the position on Islay would "not be worsened by one unit," he said, as the vehicle not yet taken up by Bell could replace the vehicle operated by Kelman. "and that could go back to Turiff where it belongs".
The Tribunal reserved its decision.