Till nk abo the neighbo rs!
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GLANCE AT APPEAL 1989 No A22 shows 27 parties to the appeal. This serves to remind operators that they must consider the effect On lives of nearby residents of their operating centre.
The appeal was allowed to the extent that the grant of a licence was quashed and the application sent back for rehearing before the Licensing Authority, rather than the Deputy LA, who — to quote the Transport Tribunal written judgment — "on this occasion, showed insufficient grasp of the law to conduct the inquiry in a satisfactory manner".
These 27 parties, and the appellant, must remember that fresh ebjections and representations in writing need to be made against the grant of any new application.
Middlesbrough Borough Council was the appellant and T P M McDonagh (Civil Engineering) Ltd the respondent.
On 9 January 1989 T P M McDonagh (Civil Engineering), applied to the North Eastern LA for an 0-licence for 11 authorised vehicles to follow on a similar licence granted in 1984, before the environment provisions of the Transport Act 1968 (as amended) came in.
Section 15 of the application form requested "For each operating centre you have in this Traffic Area, write below their addresses and number of vehicles and trailers you will keep there and the maximum number of off-street parking spaces which are available to you." The company gave only Back Hutton Road, Longlands, Middlesbrough.
Representations included claims of nuisance from noise, vibration, dust, and damage to verges and pavements. Many also complained of road safety, as they often do to LAS, but this is not an environmental matter upon which representations may be made. (See the provisional view of the Transport Tribunal in Appeal 1985 No W30 — Strathkelvin District Council v Fife Forwarding Co Ltd).
An objection to the grant of the licence was received from the council, the appellant, on "environmental grounds".
In February last year the company returned the completed form GV79E to the LA with observations including this information:
We park five or six vehicles overnight in J Wade's quarry at Newton Aycliffe because drivers live in that area and it suits our operations to tip waste and collect stone there
In the Tribunal's judgment, that passage should have alerted the office of the LA to the probability that the company had a second operating centre.
A public inquiry was held in June and evidence properly given showed the use of the base would adversely affect the
A
environment within its vicinity. There was no cross-appeal by the respondent against the imposition of the conditions attached to the licence. But the inquiry went astray in some respects.
• A witness dealt exclusively with road safety matters, which could be tendered only by the appellant if it had objected on the ground that the requirements of Section 64(2)(d) of the Transport Act 1968 would not be complied with.
• Road safety evidence was given, by the representors, although it is not an environmental matter on which they are permitted to.
• Back Hutton Road, a private road, leads from Hutton Road to the operating centre. Road safety could only properly be taken into account under Section 64(2)(d) in relation to Back Hutton Road and its junction with Hutton Road. (Appeal 1987 Y 17 Scorpio International Ltd v Lancashire county council and South Ribble borough council.) • The inquiry seemed to have been conducted on the basis that the provisions of Section 69B(5) prevented the DLA from refusing the application. No one pointed out that even though Section 6913(5) might prevent refusal on environmental grounds, the DLA would still be required by Section 64(3) to refuse the application if the respondent failed to satisfy him that the requirements of Section 64(2)(d) had been met.
• The advocate submitted that to meet the "very serious traffic hazard" a condition should be imposed against reversing into or out of the centre. No one pointed Out that there was no power to impose a condition to help road safety as opposed to limiting adverse environmental effects.
• It became clear that while all the authorised vehicles called regularly at the Back Hutton Road base for maintenance and fuel, the firm had used Wade's quarry as an operating centre.
T F McDonagh. one of the respondent's directors, informed the DLA that he had accepted advice that as soon as the licence had been granted, the respondent was to apply to vary it by adding Wade's quarry as an operating centre. Neither the DLA nor the advocates appear to have considered whether the provisions of Sections 61(2), 64(2)(d) and, in particular, Section 69A of the Transport Act 1968 (as amended) permitted a licence to be granted which did not specify all the operating centres being used, or to be used.
The DLA commenced his decision, says the Tribunal, by saying "I am going to grant this licence, subject to conditions. Now I should say at the beginning that it is a matter for regret that this residential road should be so close to, and form the approach road to this industrial area. I think that was a planning error made many years ago, but that is water under the bridge . . ."
The rest of that decision, says the Tribunal, was concerned with conditions he intended to impose which he left to the advocates to put "in legal language'.
The appellant appealed against the grant says the Tribunal. 0 Stephenson submitted that the DLA should not have proceeded when it became clear the application related 10 only one of the two operating centres. That part of the submission is well founded, in the Tribunal's view. Says the Tribunal: "Section 69A(1) of the Transport Act 1968 (as amended) makes it clear that a place may not be used as an operating centre unless it is specified in the licence. Subsection (2) of the same Section states 'A person applying for an operator's licence shall give to the Licensing Authority a statement giving such particulars as the Authority may require of each place in the area of the Authority which will be an operating centre of the applicant if the licence is granted'."
Stephenson also submitted that the DLA should have concluded that the grant of the licence would result in a material change within the meaning of 6913(5) of the Transport Act 1968.
Since the grant of the last licence the respondent had limited the number of authorised vehicles using the operating centre at any one time to four, except on public holidays. This, said Stephenson, was a material change in use.
The Tribunal says that Stephenson's submission fails. Section 69B(5) requires the applicant to satisfy the LA that the granting of the licence applied for will not result in a material change of use of the base. The change relied upon had taken place before the application.
It was also submitted that if there were no material change within the meaning of Section 6913(5), the DLA has a duty under Section 64(2)(d) to satisfy himself that the centre was suitable and would have been entitled to refuse the application if he was not safisfied.
Stephenson submitted that the DLA had not appreciated that he was entitled to refuse the application under Section 64(2)(d) even if he was barred by Section 69B(5) from refusing it on environmental grounds. "In our judgment, that submission is well founded," says the Tribunal.
"It follows that when the Deputy Licensing Authority said in his decision 'we have to accept the fact that there is this operating centre. . . and we have to live with it putting on such restrictions as may be appropriate', he was misdirecting himself.
"Although the evidence on road safety should not have been included as part of the objection or representations, the Deputy Licensing Authority would have been entitled to hear any evidence on road safety that he considered could be placed before him by the witnesses as evidence relevant to the discharge of the duty cast on him under Section 64(2)(d),"