Paul Bamber

On an appeal from a Traffic Commissioner, the Upper Tribunal must determine whether the decision was wrong, rather than rehear the matter as a first-instance tribunal. The appellant must identify objective grounds showing that the reasoning and application of the law require a different conclusion. In assessing an operating centre for a public service vehicle, the decisive question is suitability and public safety. The decision-maker must address the proposed centre and give sufficient reasons for rejecting it. Relevant matters include traffic and pedestrian levels, vehicle and site characteristics, the operator’s experience and safety record, visibility when manoeuvring, and space for safety checks. Additional safeguards must be proportionate to the risk. Where the first decision fails to address the central safety issue or relies on materially incorrect facts, the Upper Tribunal may remake the decision.

Paul Bamber appealed against a decision of the Traffic Commissioner for North West England dated 7 September 2021. The Traffic Commissioner varied his public service vehicle operator’s licence by reducing it to one vehicle and authorising Whitby Sports and Social Club, rather than Mr Bamber’s new home, as the sole operating centre.

Mr Bamber had moved house, sold his second vehicle, and sought authorisation to operate one minibus from his new residential address. He argued that the address was safer and more suitable than the club, which was distant, busy, and no longer available under the previous arrangement. The central issue was whether the Traffic Commissioner had properly assessed the suitability and safety of the proposed residential operating centre.

The appeal was allowed. The Traffic Commissioner’s decision was wrong, and the Upper Tribunal remade the decision under paragraph 17(2)(a) of Schedule 4 to the Transport Act 1985.

1. Appellate approach. The Tribunal has jurisdiction to determine questions of fact and law, but it does not conduct a new first-instance hearing. Applying Bradley Fold Travel Ltd and Anor v Secretary of State for Transport [2010] EWCA Civ 695, and the approach in Subesh and ors v Secretary of State for the Home Department [2004] EWCA Civ 56, the appellant must show more than that another view is reasonably possible. Objective grounds must establish that the reasoning or application of the law requires a different view.
2. Defects in the Traffic Commissioner’s decision. The Traffic Commissioner failed to consider, or give sufficient reasons for rejecting, the suitability and safety of the new residential address. The reasoning also proceeded on the erroneous basis that two vehicles remained authorised and that parking two vehicles at the social club was possible. The club was therefore not an obvious or realistic alternative.
3. Assessment of the proposed operating centre. The new address could safely be authorised. The Tribunal considered the quiet residential setting, low footfall and traffic, the wide driveway entrance, the vehicle’s length, the operator’s experience and safety record, the reverse camera and mirrors, adequate inspection of the road and pavement, and sufficient space for vehicle checks. The risks of reversing could be adequately managed.
4. Requiring a banksman, reversing bleepers, or driveway mirrors would therefore be unnecessary and disproportionate. The Tribunal also took account of the absence of neighbour objections, the photographs and plan, and the fact that the former residential address presented greater risks.
5. The licence was varied to authorise only the current residential address, 23 The Paddock, Great Sutton, Ellesmere Port, CH66 2NN, in substitution for Whitby Sports and Social Club. The variation took effect retrospectively from 10 February 2021.

• Upper Tribunal (Administrative Appeals Chamber). Appeal allowed against the Traffic Commissioner’s decision dated 7 September 2021. The decision was remade by authorising the appellant’s current residential address as the sole operating centre.
• Traffic Commissioner for North West England. The operator’s licence was varied to one vehicle and Whitby Sports and Social Club was authorised as the sole operating centre.