Connor Construction (South West) Ltd

A traffic commissioner may invite and accept an undertaking freely given by an operator, but has no power to impose one. The matters listed in section 13C(2) to (6) of the Goods Vehicles (Licensing of Operators) Act 1995 do not exhaust the matters on which freely offered undertakings may be accepted.

A temporary exemption under section 4 requires a forward-looking assessment of a genuine emergency or other special need. A past, inadvertent breach does not itself establish either requirement. The Tribunal also observed that a commercial vehicle remains used in an operator's business when temporarily removed from the licence but retained as an integral part of the fleet.

Connor Construction (South West) Ltd appealed decisions of the Traffic Commissioner for the South West of England made on 23 December 2020 and 14 January 2021. The decisions followed an investigation into vehicle maintenance, drivers' hours, tachograph records, the operation of vehicles beyond the licence authorisation, and tar sprayers.

The Commissioner refused a variation application, curtailed the licence, made findings concerning professional competence, removed access to the VOL system, recorded undertakings, and refused a temporary exemption. By the hearing, most practical consequences had fallen away. The central live issue was whether two undertakings had been imposed without the operator's agreement; the Tribunal also addressed the scope of the licensing regime.

1. Appeal allowed on ground 2 only. The Traffic Commissioner had recorded two undertakings concerning consultation with HMRC and DVLA. The evidence did not show that the operator had offered or agreed to them. Section 13C(7) of the Goods Vehicles (Licensing of Operators) Act 1995 permits a commissioner to take account of undertakings given by an applicant. It does not authorise the imposition of an undertaking. A commissioner may invite an undertaking and accept one given in response, but an undertaking must be freely given.

2. The Tribunal made non-binding observations that section 13C(2) to (6) does not confine the subjects of freely offered undertakings. The power to accept such undertakings is implicit in the broad and proportionate exercise of licensing powers. Flexibility may enable an appropriate regulatory outcome.

3. The refusal of a temporary exemption under section 4 was not irrational. The statutory questions were whether there was an emergency or another special need in the current circumstances. The Commissioner was entitled to treat those as demanding, forward-looking requirements. The operator's previous mistaken understanding of the law did not meet them.

4. The refusal to vary the licence was independently justified by serious concerns about drivers' hours, tachograph records, maintenance, and the adequacy of the transport-manager arrangements. The stand-alone removal of access to the VOL system was not a decision appealable under section 37.

5. The Tribunal further observed that a vehicle temporarily removed from a licence remains in business use if it is an integral part of the operator's commercial fleet. Section 58(2) identifies the person responsible for holding a licence; it does not restrict the meaning of use to actual driving. The contrary construction would undermine financial-standing and operating-centre requirements. The appeal was allowed, but no order was made and the matter was not remitted.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal on the unlawfully imposed undertakings ground, but made no consequential order and did not remit the matter: [2022] UKUT 177 (AAC).
• Traffic Commissioner for the South West of England: Decisions of 23 December 2020 and 14 January 2021 concerning the operator's licence, undertakings, variation application, and temporary exemption.