Kent Solutions UK & David Coburn

On an appeal from a Traffic Commissioner, the Upper Tribunal determines questions of law and fact on the material before the Commissioner, without the benefit of seeing and hearing the witnesses. The appellant bears the burden of showing that the Commissioner’s reasoning or application of the law requires a different decision.

A decision to revoke an operator’s licence is not undermined by the possibility that a future application might not be determined before revocation takes effect. Revocation is proportionate where the Commissioner has identified serious and credible compliance failings and concludes that no lesser measure will suffice. Administrative requirements concerning a future application do not, without more, bear on the appealable decisions under consideration.

Kent Solutions UK Limited held two standard international goods vehicle operator licences. David Coburn was its sole director and transport manager. Following two police encounters revealing vehicle, load-security, tachograph, maintenance and MOT concerns, the Traffic Commissioner held a public inquiry.

The Commissioner revoked both licences, found that Mr Coburn had lost his good repute as a transport manager, and disqualified him from acting in that capacity for an indeterminate period. The appellants challenged the decisions on four grounds: the timing of revocation and a possible fresh application, disproportionality, an alleged unfair financial-standing requirement, and an alleged unfairness concerning a suspected connection with another person.

The central issues were whether the Commissioner had erred in law, acted disproportionately or acted unfairly.

The appeals were dismissed.

1. Under Paragraph 17 of Schedule 4 to the Transport Act 1985, the Upper Tribunal had full jurisdiction to determine matters of fact and law for the relevant transport functions. Under paragraph 17(3), it could not consider circumstances arising after the Commissioner’s determination. Applying Bradley Fold Travel Ltd & Anor v Secretary of State for Transport [2010] EWCA Civ 695, the Tribunal assessed the case on the material before the Commissioner, without seeing or hearing the witnesses. The appellants had to show that the reasoning or application of law required a different view.

2. The first ground failed. The Commissioner’s decision to revoke the licences was separate from her observations about a possible future application. Whether sufficient time existed to determine such an application before revocation took effect did not affect the validity of the revocation decision.

3. The second ground failed. Reading the Commissioner’s decision as a whole, she had concluded that the serious failings identified by PC Anstead, whose evidence she found credible and persuasive, required revocation and that no lesser measure would suffice. The decision was neither disproportionate nor plainly wrong.

4. The third ground failed. The complaint about a requirement to provide financial evidence for a three-month period concerned an administrative requirement relating to a future application. It was not an appealable decision under section 37 of the Goods Vehicles (Licencing of Operators) Act 1995, and in any event had no bearing on the decisions concerning revocation, loss of good repute or disqualification.

5. The fourth ground failed. Although the Commissioner had explored a possible connection between Mr Coburn and Finbarr McMahon without evidence establishing such a connection, the Tribunal found no indication that the suspicion had influenced the decisions. Each decision was explained and justified independently of that issue, so no unfairness was demonstrated.

The stay on the Commissioner’s decisions ended when the Upper Tribunal issued its decision. The appeals were dismissed.

• Upper Tribunal (Administrative Appeals Chamber): appeals against the Traffic Commissioner’s decisions were dismissed.
• Traffic Commissioner for the South Eastern and Metropolitan Traffic Area: following the public inquiry on 8 September 2021, both operator licences were revoked; David Coburn was found not to be of good repute as a transport manager and was disqualified from acting in that capacity for an indeterminate period. Written reasons followed on 9 September 2021.