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Ministry Man Advises on
Page 82
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Normal User, Take-overs and Weight Increases
CONDITIONS of normal user declarations, difficulties involved in take-over applications and the provision made by the Licensing Authority for overweight vehicles were the main subjects of a talk given last week by Mr. R. G. Clubley, higher executive officer of the Ministry of Transport, West Midland Area, at the monthly meeting of the Coventry, Rugby and North Warwickshire Sub-area of the Road Haulage Association.
Mr. Clubley was accompanied by Mr. R. A. Devenish, of the Ministry, and Mr. G. Braithwaite was chairman of the meeting. This was the third sub-area meeting at which a speaker had given a talk of general interest to hauliers.
After detailing the implications of normal user, Mr. Clubley said that Mr. W. P. James, West Midland Licensing Authority, regarded the conditions as a safeguard of hauliers' interests, as well as a means for limiting the traffic carried by A-licence operators, to the advantage of the industry as a whole. In the absence of normal user, A-licensees could make changes in the traffic carried without a declaration of intention and difficulties could arise in a future application when proving need for an A licence.
Normal User Condemned
During the discussion, Mr. G. Mousley, of Morton's (Coventry), Ltd., condemned normal user as a factor which was undermining the goodwill normally associated with A-licence operations in favour of B-licensees. Mr. Clubley replied that there was provision for A-licence vehicles to carry a limited amount of traffic in addition to that declared in normal user, whereas a B-licensee was bound absolutely by the declaration in his licence.
The Licensing Authority considered the outgoing traffic when an application was heard at a public inquiry and, except in special cases, did not take into account the return traffic. The operator was, therefore, free to back-load goods at clearing houses and so on.
In a request for further information regarding normal-user conditions, Mr. Mousley described a hypothetical case in which an operator had to change the destination of his traffic from one port to another. It was passible, he said, that an application for variation would not be granted because of objections by other operators.
Mr. Clubley stated that if the applicant were not granted his new licence he would not surrender his old licence. If the application were opposed, the decision could still depend on the merits of the case.
Referring to certain B-licence applications'in Coventry, Mr. Mousley pointed o28 out that in one case the bulk of the traffic originated in Scotland. Consequently, the goods carried by the haulier would not affect local operators, but traffic might be abstracted from Scottish operators who had no opportunity to object to the application in the traffic courts.
Would it not have been preferable. asked Mr. Mousley, to have published the application in Scotland. Mr. Clubley replied that a haulier had to make applications in the traffic area in which his permanent base or centre was situated.
Mr. Clubley referred to applications for ordinary A licences by holders of expiring special A licences and said that if an applicant were called upon to do so, he was expected to justify his declaration of normal user. The fact that, in applying for a special A licence, he was not called on to specify normal user did not relieve him of the necessity to make the declaration when applying for a new licence. There would be no grounds for specifying " general goods, Great Britain."
Particular interest was shown by many of the members in Mr. Clubley's review of the difficulties involved in typical takeover cases. One of the first acts of the Authority's staff, said Mr. Clubley, was to verify that the licence applied for did not expire later than the existing one.
If the applicant specified the same expiry date, and in all other respects the terms of the application were identical to the terms of the old licence, the application would not be published in Applications and Decisions. There must be reliable evidence that a live business existed.
Wrong Publication Alleged
Mr. Clubley was challenged by Mr. J. Parnell, assistant secretary of the West Midland Area, to disprove that applications had been published which should not have been published. Mr. Clubley gave an assurance that if an application were entirely within the ambit of section 11(3Xb) of the 1933 Act, it would not be published.
If a change of base were involved, the application would be outside this subsection. The Licensing Authority might, however, accept a " trivial " change.
Mr. Clubley emphasized several times that certified figures for the business covering a period of 12 months had to be submitted in a take-over application. A list of customers did not assist the application, but letters of support were of value. These should provide evidence that the customer was willing to do business with the new entity.
Referring to a question regarding the take-over of a haulage company whose operations were restricted entirely to subcontract work. Mr. Clublcy said that this did not introduce any new element in the application or procedure, so long as the stipulated evidence regarding the business were provided and provided that drivers were hired with the vehicles.
Following a claim that the vendor was a bankrupt or "on the way to bankruptcy" in a number of take-over cases, Mr. Braithwaite observed that it was then impossible for the licensee to operate the vehicles economically during the take-over period. Would it be possible, he asked, for the purchaser to appoint a manager?
This question was referred by Mr. Clubley to Mr. N. Carless, of the R.H.A. panel of solicitors, for his definition of "manager." In response, Mr. Carless said that there could be no legal objection to the appointment of a manager if proper arrangements had been made for remuneration. The Licensing Authority rightly examined cases involving the appointment of a manager because sometimes no business was being operated. The appointment of a manager had, in practice, said Mr. Carless, often represented abuse of the licensing system.
Asked by the chairman to give the meeting advice on some legal aspects of take-over, Mr. Carless said that the vendor should not be paid for his business until the application had been granted. He should continue to operate the vehicles in the intervening period.
During his talk, Mr. Clubley reviewed a number of aspects of applications for contract-A licences. If, he said, it were necessary to replace vehicles during the period of the contract there would be no licensing difficulties, so long as both parties fully agreed to the change.
When Weight is Increased
Other subjects reviewed during the discussion included the procedure to be adopted if the weight of the vehicle were increased as the result of conversion from petrol-engine to oil-engine operation or by virtue of natural causes. An increase in unladen weight up to half a ton was, said Mr. Clubley, normally considered trivial by the Licensing Authority if there were no increase in carrying capacity.
An application to run the heavier vehicle would normally be granted without publication in Applications and Decisions. If it related to a capacity increase it might, in certain instances, also be granted without a public inquiry, In one case of this type the additional capacity had been 15 cwt.
Additions to the vehicle of unusual features might, however, create a condition that had to be reviewed in public. If the weight had increased during the lifetime of the vehicle the original authorized unladen weight would be taken into account in a future application.
After agreeing that a vehicle could become heavier without additions being made to the chassis or body, Mr. Clubley said that the Licensing Authority should be immediately notified of the increase. A record of it was made, but no further action was normally taken if the operator continued to run the vehicle.