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rHAT NONSENSE VORMAL USER Part II
I this second of his 2-part report, the writer analyses in .pth this bane of A licensees 1HE first part of this analysis (COMMERCIAL MOTOR, September 23) ended with a . reference to assessing breaches of normal user according to time (as distinct from 1-miles or earnings). A Scottish case was mentioned.
Scotland is often nonconformist. Its itude towards normal user shows the stomary determined independence. For uliers there, a knowledge of mathematics well as of law, is evidently an advantage. slide rule will be useful, judging from the lowing specimen declarations in a series• Scottish appeal cases: Charles Alexander and Partners (Transrt) Ltd. General goods 70 per cent in otland, 30 per cent in England and Wales. Frank Mackay Ltd. Agricultural produce d agricultural requisites, 65 per cent for Itercairn Potato Co. Ltd. throughout the iole of Great Britain; 35 per cent for her customers, mainly in Kincardine and ngus and to and from the Midlands of T. C. Brown and Co. 70 per cent of 'oducts of named customers to 23 specified :stinations; 17+ per cent fresh milk within 5 miles, but subject to the direction of the [ilk Marketing Board; 5 per cent rubber iods to specified destinations and areas; per cent potatoes etc. etc.
Three comments on the above descripins will suffice. First: if the percentages ean that no other outward traffic may be cried, they are much more restrictive than any B-licence conditions yet devised. Second: in theory at least, failure to reach any of the prescribed percentages would be as much a departure from the declarations as an excess would be. Third: in the Mackay case, at least five different interpretations are feasible, yet the licence-holder's livelihood may be in peril if his interpretation differs from that of the Licensing Authority.
According to legend, a normal user is the handiwork of the applicant for a licence. No matter what assistance he may get in composing it, he becomes sole author when he signs the application form. Neither the Licensing Authority nor the Appeal Tribunal may alter it. As the Tribunal said in the R. Garner Ltd. appeal (NW traffic area): "It is not for the Licensing Authority or anybody else to dictate to the applicant what his declaration should be." In the Scottish cases, for example, the hands are those of the applicants, but who will believe that the inspiration is not that of the LA?
It was in the Sutton appeal (NW area, May 11, 1964), however, that everybody became really snarled up in the red tape entanglements of normal user. Sutton and Sons (St. Helens) Ltd. applied, by variation, to add eight more vehicles with collapsible tanks (Portolite). For normal user, they merely wrote "as existing". That meant "general goods". The deputy LA held that there was a case to answer for bulk liquids, but not for general goods; and unless Suttons wanted him to consider a suitably revised declaration, the application would be refused.
At a later hearing, he put it rather differently. "What it amounts to is, the application as it stands is refused. If the applicants like to amend it to bulk liquids in their existing areas, then I think the proper number of vehicles would be six." After much argument, counsel said: ". . . My instructions are to amend in that sense"; whereupon a decision to grant six vehicles with facilities "mainly bulk liquids" was published.
When Suttons later appealed about the normal user, the Tribunal, in the course of a long judgment, commented: "It ffi becomes the appellants now to say that they never intended to resile from the declaration contained in their application." However, "it is not open to an LA to attach any conditions to an A licence, and he cannot obtain the same result by stating that the facilities are such as he may specify".
But the LA's decision was correct, the Tribunal continued. It did not cease to be correct because he added the words about facilities being mainly bulk liquids. "That addition was only a statement, albeit somewhat elliptical, that among the matters which he had taken into account was a declaration as to normal user in that form." As the appellants were not aggrieved by the decision to grant six vehicles, the appeal must be dismissed.
So Suttons lost? Not at all. They won. For they apparently got the normal user they wanted, despite the dismissal of their appeal. At least, that is what most experts believe. But one can never be quite sure in this sticky branch of licensing.
No facet of this subject is more ludicrous, however, than the one to be touched upon only briefly now: return loads. It has become accepted licensing doctrine that return load traffic need not be mentioned in a normal user declaration. The Tribunal has said so; the Court of Appeal has in effect echoed the pronouncement. But return loads have many disguises. What is the return load to one operator may be the outward load of another.
With tramp services, where vehicles go nomadically hither and thither, it is impossible to stick to any such neat descriptive label. Even if a haulier has only one base, and his vehicles come home regularly to roost each night, there can be difficulty in maintaining that any traffic coming to the base is return load traffic.
And what about collection vehicles used to feed trunk services? What about threecornered cross-country runs? What is the position when the bulk of an operator's traffic is brought to, not taken from, a base, as was the case in Arthur Booth (Manchester) Ltd.? Suppose all the traffic is in one direction—inwards? Is there no normal user to declare? But that is a simple sort of operation. Declaration difficulties multiply when a haulier has a big fleet and many bases.
In H. M. Sutcliffe Ltd. (NW area March 8, 1965), where it was suggested that "prime movement" should be declared, whatever might be the direction of the traffic, the company had a base at Littleborough, Lancs., and a normal user which named certain goods within 60 miles of base, plus "skins from Southern Scotland".
It had been in the habit of carrying goods to Scotland in the vehicles which were used to bring skins from Scotland; and since those journeys were beyond 60 miles of base, objectors contended that the company was in breach of its normal user. Yet if the skins had been going to, not coming from, Scotland, the company would have been entitled to carry whatever goods it wished on journeys back to Littleborough.
A tastier case still was the' more recent one of D. R. Munson v British Railways Board and Others. Mr. Munson had nine vehicles on A licence with normal user "General haulage, mainly East Anglia and London". He applied for another A for four vehicles with normal user "Imported goods, mainly timber, London, Eastern Counties and Midlands". The timber was from Felixstowe docks. He did substantial work for the London Brick Company as well. About half of the latter work was by back loading, but for the other half he sent vehicles empty to Bedfordshire. If he had not done so, his existing fleet would have been sufficient to cope with more timber from Felixstowe.
The LA accordingly refused the application, and the Tribunal dismissed the later appeal. Like the little Italian boy who in the film would not take "No" for an answer, Mr. Munson then went to the Court of Appeal on the ground that the Tribunal had misdirected itself on the nature and quality of an A licence, and that there was nothing wrong in sending vehicles out for brick traffic which represented only 11 per cent of the total gross turnover, the other 50 per cent of the brick traffic being return loads. He lost the case.
Carman Transport Ltd. (NW area November, 1963) was also fruity. Here was a company with bases in three Traffic Areas. It wanted to add five vehicles and two trailers, with normal user "as authorized". The application was refused because all the evidence (except for that of one customer) related to work originating far outside the North West (e.g. Continental ferry traffic with chemicals from Germany to London via Tilbury).
All sorts of questions were lengthily argued, such as whether there ought to be backings of carriers'. licences in other Traffic Areas, as with road passenger licensing; whether applications should be published in all Areas concerned; whether a better description of the goods to be carried was necessary so that potential objectors knew where they stood; whether there had been punishable departure from normal user in the past, and so on. And as though to emphasize how unsatisfactory is the theory and practice in relation to originating traffic, the Tribunal once again gave its oft-repeated warning that LA's should exercise extreme caution in dealing with applications grounded upon traffic originating outwith their own Areas.
Most of the hundreds of applications which are made yearly to convert Contract A licences to ordinary A's hinge, at least in part, on this same question of return loads. Jones Transport Services (Liverpool) Ltd. was a case in point. A proposed switch of 30 vehicles from Contract A, with an amended normal user of "mainly goods for• British Aluminium Co. Ltd. as required", attracted 115 objectors from many parts of Great Britain.
The LA refused the switch after a nineday hearing, holding, inter alia, that the return loads which the company would have been able to carry could be abstractions of other hauliers' outward loads; but the Tribunal on appeal reversed the decision, saying, in the course of ,a. long judgment, that "the disadvantage regarding return loads is no more than other operators can reasonably be expected to suffer in the interest of the public generally".
Turn now to another important matter revealed in the Hodge appeal mentioned earlier. On the whole, in the past, Licensing Authorities and advocates have always taken care about their choice of words when describing breaches of normal user declarations. They have been at pains to draw a distinction between B-licence conditions—from which, under section 168(5) of the Road Traffic Act, 1960, there can be no departure without risk of criminal prosecution in a court of law—and A-licence declarations (a departure from which is not a criminal offence punishable in a court of law). Presumably for that reason they have customarily described A-licence declaration breaches as "irregularities", not as "illegalities". But in Hodge the distinction between B conditions and A declarations was blurred, to put it mildly, and Mr. Hodge was said to have "continued to operate his vehicles in an unlawful manner."
The gradual transformation of irregularities into illegalities is worth tracing. In T. C. Brown and Co., the Tribunal found that criticism of alleged carrying outside the declaration of normal user was not justified —"all that was shown was a change in emphasis".
In R. Martin and Sons Ltd. (Northern area July 31, 1963) departure from a declaration was "a grave irregularity". It was "wrongdoing" in William Bros. v B.T.C. and Others and in G. K. Morrison (North Scotland November 2, 1962). In Flintham Ltd. and General Haulage (Lemington) Ltd. the reference was to "illegal operation", but in the three cases of Moss, Tribe and Others and Trenafon Transport Ltd. it was point-blank "illegalities".
Not until November, 1965, in W. Keith and Son Ltd. (Northern area), did an advocate seriously challenge the idea that a departure from a statement of intention was a criminal offence.
The curious thing about declarations of normal user—unless one knows their history and realizes that Parliament never intended that they should be made the playthings of pedants—is that they cannot be varied. There is machinery for varying B-licence conditions, but not A-licence normal user declarations. If an A licenceholder wants to change his normal user, he must apply for a new licence (no matter how long the old one has still to run), and risk objections and refusal.
Herein lies another slice of irony, for there is no right of objection to applications for B-licence variations relating to the classes of goods to be carried, as the 1951 Kitts appeal and that of Tower Transport (Sou end-on-Sea) Ltd. in 1964 clearly establish+ Between the two last-mentioned cases appeal was heard which went close to t roots of this sorry business. It was that F. W. Dawson and Co. Ltd. whose coun came to the job with a sharp axe borrow from the Court of Appeal (in Great Westc Railway v West Midland LA) and sharpen in the 1957 appeal of Clark and Co. (Sutt Coldfield) Ltd. He struck out right a left.
A mistake had been made originally I the powers-that-be with the forms of applic tion for A and B licences. They ought nev to have been identical, he averred. The pc tion for declaring the class and descriptil of goods was intended for B applicants on not for A's. The only reference in the lice sing Act to class or description of goo related to B licences. Parliament clear intended that the only restriction on licences should be as to districts to be serve As a result of the lamentable error over tl forms, public carriers had been reduced a level below that of B licensees.
So counsel went on. But the Tribun remained unmoved. Its only sop was to st that if an A applicant chose to do so, I could refuse to answer the question on ti application form about classes of goods. that was not acceptable to the LA, the app cant could seek redress in the High Cott No applicant has since seen fit to take t that challenge, however.
No chaos with specials
To show how unnecessary and nonse sical it is to put A licensees into a norm user strait-jacket, one need only look bat at what happened when thousands of gooi vehicles were de-nationalized in the secor half of the 1950's. Their many purchase were not required, on applying for the speci A licences, to give the slightest indication what classes of goods they proposed carry and the districts they intended serve. Did chaos therefore result, we Licensing Authorities frustrated, was ti balance between transport supply at demand destroyed, did customers curs( On the contrary, scarcely a ripple noticed.
Some new thinking is needed about ti whole business of normal user. That ti penalizing section 178 of the 1960 Act grossly unfair to A hauliers is beyond que tion. While wider alterations are being coi sidered, the least that should be done is I qualify that part of the section which puts licence in peril if "a statement of expectatic or intention ... has not been fulfilled".
Without tearing a great gap in the Act c torpedoing the licensing sWem, the additic of some such words as "save in circuit stances over which the licence-holder has n control" to the phrase quoted above woul lessen the unfairness. It would not wipe th page clean or erase all the obnoxious fea ures, but it would suffice until a complete] revised chapter could be written. No questio of public safety is involved.
The Minister of Transport's White Pap( foreshadows a review of the goods vehicl licensing system. Normal user is one her which should be well up the list for revisit)/