NORMAL USER
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A symposium of recent A licence appeals
BY FRANK BURRAVOE THE Transport Tribunal would be almost out of work nowadays but for two subjects which it has itself blown up into major issues. Those two subjects are the restrictions on "normal user" under A licences and the conversion of Contract A (and C) licences into ordinary A (or sometimes B) licences. Appeal after appeal involving these two issues comes from the traffic areas week after week.
Neither subject is the child of the present Tribunal. They were twins fathered by the president of the previous Tribunal, Sir Hubert Hull. The current president, Mr. G. D. Squibb, has had to Jive with the two unruly and unpredictable wards of court since he became foster-parent to them more than a year ago.
This article deals only with the one christened "normal user ". How has the Tribunal dealt with that subject since the court was reconstituted on the retirement of Sir Hubert Hull last year?
THE
BACKGROUND To reach a verdict, one must understand a little of the background. Strange as it may seem to those who have only a sketchy knowledge of licensing history, normal user is no new feature. On the inception of the Road and Rail Traffic Act in 1933, applicants for A licences (and for B licences too) were required to declare on a statutory form, just as they are now, (a) the class or description of goods to be carried and (b) districts in which, or places between which, the vehicles would normally be used. Nobody then imagined, however, that if an A licence was granted, the holder had to adhere to that declaration throughout the whole currency period, irrespective of changed circumstances, such as the loss of a major customer, a change in his class of goods or a shift in the direction of the traffic. The applicant had got an open A licence. He was a public carrier. He could, if need be, carry goods anywhere. If, indeed, he did find it necessary to depart from the declaration during the currency of the licence, there was no penalty for the departure. It constituted no breach of conditions. The Licensing Authority had no power to interfere. The licence could not be revoked or suspended on that account;, it need not be surrendered. For those reasons the declaration excited little attention in any quarters. Only when renewal time came was the holder of the
r.4
licence called upon to prove need if he had changed his activities.
The system worked quite well. No critic could complain that the organization of public goods transport by road suffered thereby. The Licensing Authorities themselves were against any meticulous definition of goods carried and districts served by A hauliers. judging from the following short extracts from a long report which Mr. Gleeson Robinson (himself a lawyer), the then Licensing Authority for the Metropolitan traffic area, made to the Appeal Tribunal at its request in connection with the appeal of Charman v Southern Railway Co. (page 125, volume 22, of Decided Cases—January, 1935):
Having regard to the practical difficulties hereinafter explained, it cannot he the intention . . . that great strictness should be observed in the interpretation of the particulars inserted by applicants (in connection with goods carried and districts served) on the forms of application. Experience in the Metropolitan Traffic Area . . . has shown that applicants experience great difficulty in stating what are the goods they carry and where the vehicles are normally operated. . . . It would not presumably he contended by anyone that the applicant should be restricted to the exact goods specified in his application. Similar difficulties occur in the description by applicants of the districts or places in or between which it is proposed that the vehicles shall be operated. . . Even where the names of towns are given . .. that does not exclude the carriage of goods intermediately... If the statements in the forms of application were to be strictly interpreted, the work of bringing the provisions of the Act into operation . . would be definitely and without exaggeration impossible. . . Where the application shows therefore that an applicant has carried various goods of a fairly general character, it is considered that the applicant has carried any type of goods which were committed to his care, and that industry would be unduly hampered and obstructed if it were necessary for him in future to ask for a variation to authorize different particular types, He is therefore authorized to carry "general goods ". When one considers that Mr. Gleeson Robinson was there referring to limited B licences, to which precise conditions can be attached (unlike the much more open public A licences), one can see what fetters have since been fastened on the industry. Any haulier who advanced such heretical views nowadays would assuredly be shot down, without benefit of clergy.
That position of relative latitude remained for 20 years. Then Parliament, in the denationalization Act of 1953, slipped in the clause which has since caused so many headaches—the clause which empowers a Licensing Authority to suspend or revoke a carrier's licence if the holder makes "a statement or intention or expectation which has not been fulfilled ". The words "slipped in" are used because throughout the debates which preceded the passing of the Act not a single reference was made to connect the clause with the " normal user" declaration. Moreover, it was some years later before the old Transport Tribunal spotted a connection.
ILLUSTRATIONS FROM SCOTLAND
That then is the history. Now let us examine how the new Tribunal has dealt with questions of normal user during the past year. The first four illustrations come from Scotland.
John Salmond of Fauldhouse appealed against the deletion of two out of three A vehicles. Until his work fell off, the three vehicles were used for carrying sand, fireclay and bricks for a named customer. Two then became idle and the appellant found other work for them. He was warned about this at a public inquiry in April, 1962, but continued to use the vehicles for the other traffic, 90 per cent of which was said to he outside the description of normal user. The appeal was dismissed.
Mr. G. K. Morrison fared no better. The normal user for his A licence was: "Meat for A. and W. Barron and fish for Joe Little Ltd.—meat to Glasgow and fish to Leith". In 1961 Little withdrew its traffic from the appellant, who
to carry meat to London for meat :ers in Aberdeen. At a public y Mr. Morrison said he did not that he had no authority to carry teat to England, but the deputy rity did not accept this explanand suspended the licence for six s. The Tribunal decided that the against this suspension was witherit and dismissed it.
jam Nichol of Aberdeen appealed refusal to add to an A licence a specified on another licence with c restricted normal user. When for a named customer declined, hide was used 75 per cent outside ormal user. Because of that elarity " the licence for the vehicle estion was suspended for four s and the application to add the to the other licence was refused. ribunal ruled that the appellant ied to regularize his position; he ede out a case for some additional y and it was proper to add the to his general licence, le appeal of T. C. Brown and Co. :hmaben, the Tribunal held that ;t that an operator had not comwith his declared normal user as percentage of goods carried for specified customers, did not debar rom advancing that work as :e in support of an application Iitional tonnage_ Criticism by the it's was not justified; all there had 'as "a change in emphasis ". This lar case is also interesting because oses the Scottish method of ping normal user: 70 per cent pro a named customer 'to 23 specistinations: 171 per cent fresh milk 25 miles; 5 per cent rubber goods !cified destinations and areas; :!ent potatoes, etc. The details, set de the quotation from Mr. GIeeson on quoted above, make intriguing ;.
4E SOUTH nuch for Scotland. Now let us iouth.
eter Bros. Ltd. v Bakers Transport tmpton) Ltd. (South Eastern area appeal of April 10, 1963) pellants carried mainly fruit and produce with a fleet of vehicles, r many years had carried cables elli Ltd_ on vehicles which, when ed for carrying cables, were used fruit and market produce. In wanting to carry bigger cable for Pirelli, the company applied to ite a platform trailer not exceed tons, but bought a semi-low Respondents, who also work for discovered this acquisition and ined to the Licensing Authority, yoked the licence for the semi-low but granted a short-term licence so that the business could be • on while an application for a substantive licence was being considered. That application was, however, refused. Upholding the refusal, the Tribunal said: "It would be wrong in principle to permit a haulier to have a vehicle specially designed for something less than one per cent of the total traffic he intends to carry, that one per cent not being traffic which is mentioned in his declaration of 'normal user."
In another appeal which concerned normal user (B. G. Gale Ltd. v British Railways Board and Others—Metropolitan traffic area), Gales had four A vehicles with normal user: " Milk within 25 miles of Kings Langley, Chelmsford and Bishops Stortford ". In 1956, when the company's shares changed hands, the vehicles were used to carry not milk but other goods in London and the Home Counties areas and various other parts of England. On application for renewal in 1958, and on variation applications later, "the declaration of facilities offered continued to be stated as it was originally in 1956 ". Nevertheless, the Tribunal did not find it necessary to make any adverse comment, but dismissing the appeal against refusal of the licence, said that it was inappropriate to grant an A licence at all. The circumstances were such, however, that the grant of a B licence might be the proper course, "... occasionally longer journeys"
F, W. Dawson and Co. Ltd. (appeal of April 3, 1963, from Metropolitan traffic area) operated four vehicles under declaration: "General goods within 25 miles and occasionally longer journeys." In 1960 the company got contracts to carry Press traffic between London and the North West. That traffic increased. In 1961 "things began to go wrong . . the old-established customers were sacrificed to satisfy the Press". In April, 1962, application was made for renewal and two extra artics to be acquired. The normal user sought was
General goods within 25 miles and N.W. England", the occasional journeys to the N.W. having become no longer occasional. but regular. The applications were refused and the refusal was upheld on appeal on the ground that the appellants had failed to prove their case. The same question was argued here as in the Clark appeal of 1957—namely, whether the.declaration of an A applicant should be limited to districts to be served and not to the class or description of goods.
In the appeal of Walker Bros. (Heysham) Ltd., the appellants wanted to add 10 tippers to an existing A licence for 15 vehicles which had a normal user: "Oxide, solid fuel, lime, limestone, ashes, sumps, bones, bricks and road materials, ammonia and salt for road purposes" in named counties and "nitro-chalk for
I.C.I. as required ". The deputy Authority offered to add the 10 vehicles if Walker would amend its normal user to read: "Ash, road materials, concrete aggregates and lime ". The company declined; the application was refused and the appeal lodged, The Tribunal (Feb. 5, 1963) said that it could not agree with the appellant's argument that since the goods proposed to he carried came within the existing normal user, the proper course was to add the vehicles without any separate declaration. To do so would mean that if the new traffic failed to come up to expectations, some or all of the extra vehicles would be available to carry the remainder. The appellant would be given a further opportunity of amending the declaration, failing which the appeal would be dismissed.
" Mind" of the Tribunal
Perhaps the clearest glimpse into the mind of the Tribunal came with the Hodge appeal on March 1, 1963. Mr. R_ A. Hodge (trading as Key Transport Co.) held an A licence for five vehicles. He appealed against the refusal of a renewal of his licence for four out of the five vehicles. According to the Tribunal's written verdict, his "declared facilities" were: Meat, poultry, provisions—London and Home Counties. Trade in those commodities fell off in 1961 and he began to carry a variety of other goods. "He did not, however, take the obvious step of applying for a licence to carry those other commodities, although he stated that on August 9, 1961, he wrote a letter to the Licensing Authority (which was apparently not received) expressing a desire to use his vehicles for the purpose of general haulage. Certainly Mr. Hodge never pursued the matter further, but continued to operate his vehicles in an unlawful manner" until the Licensing Authority, having found out what was going on, communicated with him in February, 1962, Mr. Hodge stated that he "then ceased to use his vehicles in that unlaw. ful manner. , . Indeed, it appears . that he ceased to use the vehicles at all, because there was so little meat and provisions traffic ". There were some other sidelights in this appeal (which was dismissed) apart from the normal user aspect, but three features deserve comment. One is the use of the words " declared facilities" which seems to leave out the important distinction between what may be a haulier's normal activities and his non-normal ones. The second is the use of the expression unlawful manner ", which seems to suggest a criminal element, although nowhere in licensing legislation is a departure from a statement of intention or expectation made a criminal offence triable in a court of law and punishable by a fine or imprisonment. The third raises the question: For how long during the five-year currency of an A licence could a departure from a declaration of normal user be maintained without risk of suspension or revocation of the licence, having in mind fluctuations in a particular trade, for example?
The haulage industry will await with interest further developments in this curious tale about normal user_ There may well be some surprising twists in the story before the sequel is written.