Neutral Citation Number: [2014] UKUT 0156 (AAC)             Appeal No.  T/2013/85

IN THE UPPER TRIBUNAL                       

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Patrick Mulvenna, Deputy Traffic Commissioner for the

North West of England Traffic Area dated 18 November 2013

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

Appellant:

 

 

KARL DYSON & BRIAN DYSON

 

                                        

Attendances:

For the Appellants: In person 

 

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 25 March 2014

Date of decision:    31 March 2014

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be DISMISSED

 

 

 

SUBJECT MATTER:-  Application for restricted licence; whether environmental representations made out.

 

 

CASES REFERRED TO:-  None

 

 

REASONS FOR DECISION

 

 

1.             This was an appeal from the decision of the Deputy Traffic Commissioner for the North West of England Traffic Area (“DTC”) made on 18 November 2013 when he refused the Appellants application for a restricted operator’s licence under s.14 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).

 

2.             The factual background appears from the documents, the transcript and the Traffic Commissioner’s written decision and is as follows:

 

(i)            On 6 December 2012, the Appellants made an application for a restricted operator’s licence authorising one vehicle which was described as a 21,000kg car transporter.  Their business was described as “farmer/land rover renovations + rebuild”.  The address of the operating centre was Oakfield Farm, Threaphurst Lane, Hazel Grove, Stockport.  The proposed access to the operating centre was over a privately owned track belonging to Gerard and Alan Daring which was accessed from Threaphurst Lane.

(ii)          The application attracted representations from Gerard Daring and Geoffrey Hindle.  Mr Daring, who lived at the junction of Threaphurst Lane and the access track, accepted that the land rover business itself did not cause a nuisance.  However, a double decked car transporter was an unsuitable vehicle for the small access track which ran through his property which was next to the home he shared with his brother.  There was an existing right of way along the track for recreational, domestic and agricultural purposes, but there was no right to use it for commercial purposes.  It was a very narrow, single lane track with an unsealed surface with steep inclines in parts.  There were no passing places save for a private driveway (owned by Mr Hindle whose property was accessed from the track) and the path to the Darings’ garden.  He considered that the use of the vehicle would be dangerous and would cause noise disruption.  By reason of the track bisecting Middlewood Way, a recreational path which follows a disused railway line, the track itself was used by pedestrians and horse riders.  Mr Daring later produced a copy of a Public Path Creation Order recording that the track itself had become a bridleway between Threaphurst Lane and Middlewood Way in th1980’s with a condition that three sets of gates be installed along the track measuring 2.5 metres wide.  Those gates had never been installed.

(iii)         Mr Hindle complained that the track was not suitable for a double decked vehicle because of the vehicle’s size.  It would pass within inches of his wall, the track being approximately nine feet wide at that point.  There was a great risk of damage being caused to it.  The track was used extensively for recreational purposes and the use of the vehicle would inevitably result in “clashes” between the vehicle and recreational users of the track.  Reversing the vehicle would be very difficult and there were no passing places.  His access would be used for this purpose which he objected to. 

(iv)         The Appellants were given the opportunity to comment upon the representations.  They provided a joint letter stating that they had spoken to the representors.  The representors had not noticed the haulage vehicles belonging to outside contractors who were presently using the track to deliver to the farm.  The track was used for vehicle access by horse owners who rented the ten DIY stables that the Appellants operated on the farm along with land rovers with twenty foot trailers attached to them for transporting other land rovers into and out of the farm.  Other large vehicles such as gas tankers also used the track and the representors had overreacted.  The vehicle would be used twice per month for national journeys and in addition, three to four times a year for the collection of land rovers from Spain and a further three to four times a year for the collection of exported land rovers from the USA.  The top deck of the vehicle would not be used “most of the time”.

(v)          The operating centre was assessed for its suitability by Traffic Examiner Williams (“TE Williams”) in January and February 2013.  He noted that any large vehicle leaving the entrance of the track could not avoid encroaching across the whole of Threaphurst Lane; that whilst the track was “technically a footpath”, vehicles could and did travel along it to gain access to the farm buildings where horses were kept.  In conversation with Karl Dyson, TE Williams pointed out to him that a 21,000kg vehicle was too large a vehicle to use the track.  It was however pointed out to TE Williams that firstly the vehicle would only be used once or twice a fortnight and secondly that the vehicle would not be carrying more than two vehicles at any one time and so the overall weight of the vehicle would not exceed 11,000kgs.  The use of a single HGV vehicle would reduce the number of vehicle movements of land rovers towing trailers (the means by which he transported vehicles to and from the farm at that time).  TE Williams concluded that:

“Having visited the area it was my initial opinion that there would be an adverse effect to the users of the path/lane from Threaphurst Lane along Oakfield Farm Lane in respect of road safety, primarily due to the width of the lane and the difficulty in vehicles, horses and walkers passing each other at various sections of the path if the application was granted.  However as this lane has been used apparently for years with tractors and trailers being of a similar size in weight and length to the type of vehicle Mr Dyson wishes to operate, it may appear to be a little unfair if the application was refused and so based on the fact that agricultural vehicles of a similar size already use the lane/path and the infrequency which Mr Dyson claims that the vehicle would be used; it is my opinion that the operator licence should be granted with the strict condition that he is limited to the one 21000kg which he hopes to use with no authorisation for trailers.”

(vi)         As a result of the delays in considering the application, Karl Dyson applied for and was granted an interim licence with effect from 13 May 2013.  The conditions attached to the licence were a restriction on the weight of the vehicle to 21 tonnes or 12 metres in length; the top deck of the transporter should not be extended when entering or leaving the operating centre; no vehicles should be transported on the spec-lift of the vehicle when entering or leaving the operating centre; there would be no more than a combined total of 12 movements in and out of operating centre per calendar month. 

(vii)        By letters dated 22 June 2013, the Office of the Traffic Commissioner (“OTC”) informed Mr Daring and Mr Hindle about the interim licence and the conditions attached to it.  In response Mr Daring referred to a visual nuisance being created by the use of the vehicle along with noise, disruption, dust and damage to the private access track which would not be significantly reduced by the conditions.  If the top deck of the vehicle was to be used to transport vehicles, then the unloading of that deck prior to the vehicle entering the track would take place outside his property on Threaphurst Lane (which had apparently occurred in the past).  In any event, the Dysons’ right to use the track for access was highly questionable.  In addition to his previous representations, Mr Daring asserted that Brian Dyson had made alterations to the track without Mr Daring’s permission.

(viii)      Mr Hindle responded in similar terms.  In addition to his previous representations, he considered that the access to his own drive would be compromised by use of the vehicle.

(ix)         The public inquiry took place on 15 November 2013, the DTC having undertaken an inspection of the access track the week before.  An application for an adjournment made by Mr Hindle due to his absence from the country had been refused.  Present at the hearing were Gerard and Alan Daring, represented by Mr Hanson solicitor and Brian and Karl Dyson.

(x)          The unchallenged oral evidence of Gerard Daring (in addition to his written representations) was that he experienced noise disturbance from vehicles using the track for the same purpose for which the authorised vehicle would be used, at all hours, including during the night and at weekends in addition to during the week.  He described rattling and vibration caused by the land rovers that Karl Dyson used for his business with the “kicking up” of dust.  There had been a few near misses on the track as a result of the vehicles being driven too fast along it.  He referred to many issues which called into question whether the operating centre was in fact “available” for use as such (which will be dealt with in due course). 

(xi)         The evidence of the Appellants in relation to the environmental issues was accurately summarised in the DTC’s decision in this way:

“(they) said that the vehicle would be used irregularly, sometimes two or three times a week, but often not used at all for some weeks.  The intensity of use would depend upon the availability of land rover vehicles for purchase with a view to restoration and re-sale.  They said that they would need total freedom to operate the vehicle as and when required and that a condition limiting hours or weekend/bank holiday working would be commercially  unacceptable.  They referred to present disturbance from existing traffic using Threaphurst Lane, including skip vehicles, which they asked to be taken into account in the assessment of the application”.

(xii)        In his written decision, the DTC accepted the unchallenged expert opinion of TE Williams that the operating centre itself was suitable in terms of size for use as such and for the parking of one vehicle.  He did not however, accept TE Williams’ view of the suitability of the access track for use by a large goods vehicle.  It was evident that he had based his conclusion on road safety issues alone.  He did not take account of the environmental impact on the representors as he did not have the benefit of the evidence which the DTC had before him.  It was also evident that TE Williams had not been given the same information as was presented at the hearing in relation to the intensity of use of the vehicle.  He was told that the vehicle would be used once or twice a fortnight.  He was not told of any potential unsocial hours use.  The DTC accepted without reservation the unchallenged evidence of Mr Daring whom he found to be honest and reliable.  His evidence was consistent and full whilst given in an open and measured manner without elaboration.  He also accepted the unchallenged written representations made by Mr Hindle.   It followed that the operating centre was unsuitable as its use would be capable of prejudicially affecting the use or enjoyment of the representors’ land by reason of noise, vibration and dust.  There was also a real prospect of use during antisocial hours which might have a particularly serious impact, including the loss of sleep.  As the Appellants had stated that they would need total freedom to operate vehicles, the imposition of conditions would be unworkable.  The application was refused.

(xiii)      The DTC then went on to deal with other matters which had arisen during the hearing which gave rise to a measure of concern in relation to the status of the track, the consents and approvals in relation to its use and the status of the Appellants themselves.  To summarise the evidence in relation to these matters: the Appellants had acquired two fields in the early 1980’s along with a right of way to use the track for access to those fields “for all purposes” and subject to a contribution towards the maintenance of it.  The conveyance produced at the hearing established that the right of way did not continue past those fields to the farm.  Only a footpath is shown at the point where the right of way terminates.  The Appellants told the DTC that they had then acquired two other properties (the farm itself and a former waterworks) both of which had access directly from the A6.  They had never used that access but had rather chosen to use the track.  The DTC concluded following evidence on the point that if a further application for a licence were to be made, it was likely that the status of the track would be a contentious issue, not least because Mr Daring owns the land over which the right of way exists. 

(xiv)      There was then the issue of the Appellants’ failure to apply for relevant planning permissions and consents in respect of the use of their land.  They accepted that they had failed to apply for permissions, approvals and consents in respect of a number of matters affecting Oakfield Farm including residential occupation.  It appeared to the DTC that the use of the land had been extended “by stealth” and that planning permission was no longer required because of established use.  These matters raised question of fitness to hold an operator’s licence.  Any failure to deal openly and honestly with public authorities called into question the trustworthiness of an applicant generally and in relation to future compliance. 

(xv)        There was then an issue as to the true entity of the operator of the vehicle and the identity of the owner of the vehicles to be transported.  It was accepted that a limited company, KDLandrovers Limited had been incorporated by Karl Dyson in May 2013.  The evidence of the Appellants was confused and contradictory about this entity.  The DTC was told that the company was not yet operating but Mr Hanson then produced internet downloads from Ebay demonstrating that the company was selling land rover parts and had a bank account.  The DTC was far from convinced that the Appellants were the correct entity for the purposes of the licence application.  The DTC concluded that even if he had not refused the application on environmental grounds, these other concerns would have given him serious pause for thought and that any future application should be considered at a public inquiry.

 

3.             At the hearing of this appeal, the Appellants appeared in person.  They complained that the public inquiry had been “all about planning” and that “everything had been dug up” going back thirty years and that those issues were irrelevant to the application.  It was as a result of that evidence, that the DTC took the view that the Appellants acted “in stealth” over regulatory matters which the Appellants objected to and were appalled by.  Brian Dyson had always had a good relationship with his neighbours and in particular the father of Gerard and Alan Daring.  He had taken on the responsibility for repairing the track and had never asked for a contribution from others.  Everyone had been content for him to do this and no objection was made when he repaired the track when it started slipping into an adjacent brook.  Everything changed over night when there was mention of an operating centre.  The representors had misunderstood what this had meant.   It was a pity that the representors had seen the advertisement concerning the application because if the application had then been granted without their knowledge, the representors would have been none the wiser.  The vehicle would reduce the overall number of vehicle movements in and out of the operating centre, thus reducing the noise and disturbance, the car transporter being a slower and less noisy vehicle than a land rover with a trailer.  All the Appellants wished to do was to reduce their transport costs and no account had been taken of that. 

 

4.             As for the KDLandrovers Ltd, they had tried to explain the position.  That company was for the sale of land rover parts which were bought in separately from the land rover vehicles.  They had intended to obtain the licence as a partnership and then in due course, as Brian Dyson reached retirement, the licence would be transferred to the limited company. 

 

5.             The Tribunal took the Appellants through their grounds of appeal.   It was their case that the DTC should have granted the application with strict conditions (similar to those imposed on the interim licence) and in line with the opinion of TE Williams.   All manner of vehicles use the track at present including agricultural vehicles.  They denied that either of them had been resistant to any restriction on the hours of operation of the vehicle despite the Tribunal taking them to that part of the transcript at which the DTC had asked questions of them upon the subject.  They both considered that they must have misunderstood the questions as they did not think that the DTC was talking about unsocial hours.  Both Appellants were of the view that they could have come to some agreement with the DTC on conditions.  As for his findings in relation to the environment, Brian Dyson considered that he did more than anyone else in the area for the environment and did not agree with the DTC’s findings. 

 

6.             The Tribunal asked the Appellants about the alternative access that came with the purchase of the old water works and with the farm.  They maintained that the access from the A6 was dangerous and required work to be done to it in order for it to be useable.  As a result, they had never used it.

 

7.             We are satisfied that the way in which the DTC dealt with the public inquiry and the issues which arose out of it, cannot be impugned.  He of course had the advantage of having inspected the track shortly before the public inquiry and having heard all of the evidence from the witnesses.  The Tribunal will always be slow to interfere with findings concerning the credibility, demeanour and truthfulness of witnesses and the evidence of the representors (both oral and in writing) was largely unchallenged.  The DTC preferred the evidence of Mr Daring and gave reasons for doing so.  We will not interfere with that finding.

 

8.             Whilst it may well be that the Appellants had misunderstood the questions being asked of them concerning restrictions as to the movement of the vehicle during anti-social hours, the difficulty they face is that they did not agree to or offer any conditions restricting the hours during which the vehicle could be operated.  It was upon that basis that the DTC came to his conclusion that having found that the use of the vehicle would or could have an adverse environmental impact upon the use and enjoyment of the representors land, he had no option but to refuse the application, there being no conditions before him that the Appellants would agree to.

 

9.             We agree with the DTC’s concerns about the other matters raised by him in the addendum to his decision.  In particular, if the position is that the Appellants have no right of way along the track for access to either the farm or the old water works either to the point where the fields are accessed or beyond and in particular for commercial uses, then it is difficult to see how the operating centre is “available” for use unless they use the legitimate access to the farm and the old water works which to date, the Appellants have been disinclined to either update or use. 

 

10.         We cannot find that reason or law impel us to take a different view from that of the DTC on any issue (as per the test enunciated by the Court of Appeal in the case of Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695 and in the circumstances, this appeal is dismissed.

 

 

 

Her Honour Judge J Beech

 31 March 2014