Van Duijin Fleet BF & Anor

When determining an application for the return of an impounded vehicle, a Traffic Commissioner must address any ambiguity in the applicant’s case and consider whether a public inquiry is appropriate. A public inquiry is not mandatory in every case. However, where the ownership or statutory ground for return is unclear, particularly where a valuable asset is involved, the exercise of discretion not to hold one requires a reasoned explanation. An explanation of why the application fails does not adequately explain why a hearing was refused. Failure to provide that explanation is a failure to give adequate reasons and may render the decision unfair. The appropriate remedy is to set aside the decision and remit the matter for a complete rehearing before a different Traffic Commissioner.

The Driver and Vehicle Standards Agency impounded a commercial vehicle. Two related appellants separately applied for its return under the Goods Vehicles (Licencing of Operators) Act 1995 and the Goods Vehicles (Enforcement of Powers) Regulations 2001. The Traffic Commissioner refused both applications on the papers. The first decision questioned ownership and stated that further evidence was needed, but also treated the application as refused. The second decision concluded that the second appellant was probably a tenant rather than the owner and, alternatively, that the cabotage breach prevented return. Neither decision explained why a public inquiry was not directed. The central issue was whether the Traffic Commissioner had fairly and adequately explained the exercise of that discretion.

1. Appeals allowed. The decisions of 2 August 2021 and 17 August 2021 were set aside. The matter was remitted to a different Traffic Commissioner for a complete rehearing at a public inquiry.

2. A public inquiry was not mandatory. The Traffic Commissioner had a discretion to determine the applications on the papers. However, the first appellant’s position as to the basis for return was ambiguous, and the application concerned an asset of substantial value. Those circumstances required consideration of whether a public inquiry should be directed.

3. Where the discretion is exercised against holding a hearing, the decision-maker must give reasons addressing that exercise of discretion. The first decision explained why the application was rejected, including the perceived failure to establish ownership and the apparent admission of cabotage, but did not explain why a public inquiry was unnecessary. The statement that reasons would follow did not cure that omission.

4. The second decision also failed to indicate that the possibility of a public inquiry had been considered or to explain why one was not directed. The uncertainty concerning ownership did not itself prevent both applications from being rejected, but it reinforced the need for a properly reasoned decision.

5. On rehearing, both appellants should be considered unless it is conceded that the second appellant cannot be the owner as a matter of law. Ownership is not necessarily confined to one or other appellant. Even if ownership is established, an appropriate statutory ground for return must still be demonstrated.

• Upper Tribunal (Administrative Appeals Chamber): appeals from the Traffic Commissioner’s decisions of 2 August 2021 and 17 August 2021 were allowed. Both decisions were set aside and the case was remitted to a different Traffic Commissioner for a complete rehearing at a public inquiry.