Brett Pennells

On an appeal from a Traffic Commissioner, the Upper Tribunal determines questions of fact and law on the material before the Commissioner, but cannot take account of circumstances arising later. The appellant bears the burden of showing that the Commissioner’s reasoning or application of the law requires a different outcome. A restricted public service vehicle licence requires evidence addressing each applicable statutory requirement, including the existence and availability of a suitable operating centre and satisfaction of the main occupation requirement. Assertions unsupported by relevant evidence may justify refusal. The Tribunal may proceed in an appellant’s absence where the circumstances make it fair and proportionate to do so.

The appellant operated a small taxi business and applied for a restricted public service vehicle operator’s licence. The Traffic Commissioner held a public inquiry on 4 January 2022, which the appellant neither attended nor sought to postpone, and refused the application under the Public Passenger Vehicles Act 1981.

The appellant appealed, contending that the main occupation requirement would be met, that parking spaces had been made available at the proposed operating centre, and that he was a sole trader. He did not attend the Upper Tribunal hearing and invited the Tribunal to determine the appeal in his absence. The central issues were whether the Tribunal should proceed, whether the Commissioner had erred in refusing the application, and whether the appellant had discharged the evidential burden on the licensing requirements.

1. Proceeding in the appellant’s absence. The Tribunal proceeded because the postponement request lacked detail, the appellant had invited a decision in his absence, the issues were straightforward and identifiable from the papers, and it was just and proportionate to proceed.
2. Appellate approach. The Tribunal’s function was to determine matters of fact and law on the material before the Traffic Commissioner. It could not take account of circumstances arising after the determination. Under Bradley Fold Travel Ltd & Anor v Secretary of State for Transport [2010] EWCA Civ 695, the appellant had to show that the Commissioner’s reasoning or application of the law required a different view.
3. Operating centre. Section 12 of the Public Passenger Vehicles Act 1981 required an operator to have an operating centre specified in the licence. The appellant had supplied no evidence from the owner of the proposed premises confirming consent or availability. The refusal was therefore lawful and, on that basis alone, the appeal failed.
4. Main occupation. The appellant had supplied no documentary evidence supporting his assertion that the main occupation requirement would be satisfied, despite having been alerted to the need for business evidence. Refusal on that basis was also inevitable.
5. The material did not call the appellant’s good repute into question, although it raised concerns about his ability and competence to gather evidence and present a viable case. The appeal was dismissed.

• Traffic Commissioner for the West Midlands Traffic Area: Following a public inquiry on 4 January 2022, refused the application for a restricted public service vehicle operator’s licence.
• Upper Tribunal (Administrative Appeals Chamber): Dismissed the appeal and upheld the refusal.