D A Prime Log Ltd

Publication of a notice for a heavy goods vehicle licence within the statutory period is a mandatory and inflexible requirement. A traffic commissioner must refuse the application without considering its merits where the requirement is not met, subject only to the statutory qualification concerning defects in form or content that have not prejudiced any person’s interests.

On appeal, the Upper Tribunal determines questions of fact and law on the material before the traffic commissioner and cannot take account of circumstances arising later. The appellant bears the burden of showing that the traffic commissioner’s reasoning or application of the law requires a different outcome.

DA Prime Log Ltd appealed against the refusal of its application for a Standard National Goods Vehicles Operator’s Licence. The application was made on 18 September 2021. The appellant did not initially provide evidence of a notice published in a local newspaper within the statutory period.

After requests from the Office of the Traffic Commissioner, the appellant produced evidence of a notice in the Metro dated 8 November 2021 and later evidence of a notice in a local newspaper. Both notices were outside the period required by section 11 of the Goods Vehicles (Licensing of Operators) Act 1995. The central issue was whether the later notices enabled the Upper Tribunal to allow the appeal.

1. Appeal dismissed. The appellant had not published the required notice within the period beginning 21 days before, and ending 21 days after, the application.
2. Section 11 of the Goods Vehicles (Licensing of Operators) Act 1995 requires a traffic commissioner to refuse an application without considering its merits unless the statutory publication requirement has been satisfied. The timing requirement is mandatory and inflexible. The qualification in section 11(3) concerns defects in the prescribed form or content where no person’s interests are likely to have been prejudiced; it did not assist the appellant, whose notices were out of time and, in one case, published in a newspaper that was not local.
3. Paragraph 17(1) of Schedule 4 to the Transport Act 1985 gives the Upper Tribunal full jurisdiction to determine questions of fact and law arising in the exercise of its transport functions. Paragraph 17(3), however, prevents it from taking account of circumstances that did not exist when the appealed decision was made.
4. Following the approach explained in Bradley Fold Travel Ltd and Anor v Secretary of State for Transport [2012] EWCA Civ 695, the Upper Tribunal had to assess the appeal on the material before the traffic commissioner, without the benefit of hearing witnesses. The appellant bore the burden of showing that the traffic commissioner’s reasoning or application of the relevant law required a different view.
5. The traffic commissioner had correctly applied section 11. The later publication of notices could not cure the failure existing when the application was determined. No error of law or fact was established, and the appeal was dismissed.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal from the traffic commissioner’s refusal of the operator’s licence application.
• Traffic Commissioner for the North West of England Traffic Area: refused the application by letter dated 23 November 2021 under section 11(1) of the Goods Vehicles (Licensing of Operators) Act 1995.