What is Eastern Traffic Area doing wrong?
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• What is the Eastern Traffic Area doing wrong? The cruesion is prompted by two recent appeal decisions in which the Transport Tribunal has criticised, among other things, the way that public inquiries are being conducted. In addition, there are aspects of both decisions that could have serious repercussions for the licensing system.
In the first case, Mid Suffolk District Council v A. Dowell Junior, trading as A. Dowell & Son (Bury), the council had appealed against the grant of a licence for nine vehicles and trailers for a 12-month period. At the suggestion of all parties, the Tribunal has allowed the appeal to the extent of directing that the application be reconsidered.
In doing so, the Tribunal criticises the Eastern Licensing Authority in a number of respects. The Tribunal says he had been wrong to put the parties under persistent and confusing pressure to compromise; there was never any prospect of the parties reaching a compromise.
The LA had been wrong to exclude evidence from the parish council, which had no locus to object or make representations, if called in support of the district council's objection, says the Tribunal. The LA had been clearly wrong to exclude evidence regarding the junction of the access road, Mill Lane, with Heath Road, where vehicles leaving the operating centre normally turned left at the Tjunction. In the Tribunal's view, that evidence was clearly relevant and important.
The Tribunal believes that the LA had become confused about the extent to which he should investigate planning matters; he had wrongly believed that the firm could continue to use the site concerned to park its vehicles even if the application were refused.
The Tribunal concludes that the conduct of the public inquiry and the absence of understandable reasons for the LA's decision were so unsatisfactory that the grant of the application must be set aside. In remitting the application for rehearing, the Tribunal has directed that the firm is issued with an interim licence subject effectively to the same six restrictive conditions the LA had imposed in granting the licence.
The Tribunal makes a number of additional observations. It comments that the firm offered, and the LA accepted, undertakings that only eight vehicles would be specified and that the firm would use only specified sections of Mill Lane and Heath Road. The LA referred to those undertakings in his decision, and they were embodied, although inaccurately, in the clerk's decision letter.
The Tribunal says it has noted recently an increased use of undertakings by some LAs, on occasions accompanied by warnings of what could be expected if the undertakings were not honoured. As the legal effects of such undertakings have not been argued before the Tribunal, it feels that it was inappropriate to go further than say that it feels there may be some doubt as to whether any undertakings in respect of matters which could not be included in a condition are directly or indirectly enforceable. It draws the attention of LAs to Regina v Edmonton Licensing Justices, Ex paste Baker and Another (1983).
The Tribunal says that having reached the decision that he did, the LA might well have considered it appropriate to limit the period of the licence to 12 months so that all concerned could review the effects and the working of the conditions that he had decided to impose.
Earlier in the inquiry, however, he had indicated that it was not his custom to grant a new licence for more than 12 months.
In the Tribunal's view, Section 67 (3)(a) of the 1968 Transport Act, as amended, only permits an LA to grant a licence for less than five years where a shorter period appears to him to be appropriate in the case of any applicant. That means that the circumstances of each applicant must be considered.
If there were to be any policy that all new applicants should be given a trial run for 12 months, regardless of the suitability of the proposed operating centre, that could be very unfair to objectors on environmental grounds and representors, as once a licence had been granted, Section 6913(5) might prevent the LA from refusing it when it came up for renewal, even if conditions had proved inadequate.
The second appeal involved minibus operator Lunar Module Ltd, which was appealing against the reduction of the number of vehicles authorised and the premature termination of its licence.
Although dismissing the appeal, the Tribunal comments on the fact that the Eastern Traffic Commissioner had suggested various undertakings that he would like the company's managing director, Mr Dudley, to give, and which Dudley, sometimes after sturdy encouragement, agreed to give.
In its additional observations, the Tribunal says it had impressed upon Dudley that although the Traffic Commissioner had not imposed, and could not impose, any of his undertakings as conditions for the continued retention of the company's licence, the statements of intent made in its application for its licence remain in full force and are of great importance.
The Tribunal says it had remarked in the Mid Suffolk District Council v Dowell Appeal, the effect of undertakings given in respect of matters for which conditions could not be imposed may be open to some doubt.
The Tribunal has not yet had to consider whether, and if so to what extent, statements made in evidence at a public inquiry considering an application for a licence or a variation of a licence fall within the ambit of Section 17(3)(a) of the Public Passenger Vehicles Act 1981, or Section 69(1)(c) of the Road Traffic Act 1968 the making of false statements in order to obtain a licence.
In no event can either of those sections be relevant to a public inquiry concerned, as here, not with an application for a licence or the variation of a licence, but with the exercise of powers of revocation, premature termination and curtailment.
Greater emphasis on better compliance with declarations of intent contained in an application for a licence and with any relevant statutory obligations may be a rather surer method of enforcing the necessary standards than by further extending the practice of seeking undertakings.
At first sight, it would appear that in those two appeal decisions the Tribunal is saying that the Eastern LA and Traffic Commissioner has got his procedure wrong. A closer look, however, reveals a number of curious aspects. The Dowell case was dealt with by the then LA John Mervyn Pugh while the Lunar Module case was dealt with by his successor Brigadier Compton Boyd. In both appeal hearings one of the Tribunal members was former Eastern LA Kenneth Peter.
If Mervyn Pugh was so wrong in his decision, why did the Tribunal direct that Dowell be issued with an interim licence in exactly the same terms as the original grant? A recent decision of Mervyn Pugh, as West Midland Traffic Commissioner, whereby he granted a new applicant a two-year Licence because of previous experience as an operator, indicates that he does not operate a rigid policy irrespective of the circumstances of individual applicants.
There are, however, more worrying aspects about both appeal decisions. Certainly the Dowell decision, and to a lesser extent the Lunar Module decision, can be seen to be personal attacks on the LA and Commissioner concerned. Certainly, they can do nothing for their standing in the eyes of operators. It is a far cry from the days when a previous president of the Tribunal once said of an LA that he had arrived at the right decision for the wrong reasons.
The most worrying aspect of all is the view that the Tribunal has expressed about undertakings. If it is right, in what it admits is only a tentative view, it strikes at the very root of the whole licensing system.
Operators licensing is effectively based on promises made as to the future. How can a statement of intention made in answering a question on an application form be distinguished from oral undertakings given at a public inquiry?
If oral undertakings are broken, the operator is at best unreliable and at worst dishonest. Is the Tribunal saying that the breaking of undertakings freely given should be disregarded? If it is, the system becomes virtually toothless.
It is highly dangerous for a body with the authority and standing of the Transport Tribunal to express a tentative view, particularly on a point of such importance. The expression of a tentative view is less than helpful as it presupposes that the Tribunal may well come to a different conclusion when the matter is fully argued before it.
The High Court decision it refers to is also unhelpful. It refers to completely different legislation, liquor licensing, where there is an Act of Parliament that specifically prohibits the imposition of conditions on a licence for off-licence premises.
So far as the Lunar Module case is concerned, there are no environmental provisions in passenger licensing and any undertakings given in regard to maintenance are surely just as much statements of intention as are the answers on an application form?
If LAs and Traffic Commissioners cannot in future accept undertakings from operators, far more applications are going to be refused and far more licences revoked than hitherto has been the case.
by Insider