Mark McBurney t/a MMB Haulage v Department for Infrastructure for Northern Ireland

A holder of a standard goods vehicle operator’s licence must continuously satisfy the requirement of an effective and stable establishment. This includes access to at least one authorised goods vehicle under Regulation 4A(2)(b) of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012.

On an appeal against revocation, the Upper Tribunal reviews the material before the Department. The appellant bears the burden of showing that the reasoning or application of law required a different view. The Tribunal will not interfere merely because a licence-holder later expresses an intention to obtain a vehicle. Where no vehicle has ever been available and no effective steps were taken after warning, revocation for failure to meet the establishment requirement is not plainly wrong.

The appellant held a Standard National Goods Vehicle Operator’s Licence issued in 2019. No vehicle was ever specified on the licence. After the Department for Infrastructure asked him to confirm access to a vehicle, the appellant said that business decisions and the COVID-19 pandemic had prevented him from using the licence, but that he intended to do so.

The Department gave notice that it was considering revocation and offered written representations and a public inquiry. The appellant sought retention of the licence but neither identified a timeframe nor sought a period of grace or a public inquiry. The Department revoked the licence under the Goods Vehicle (Licensing of Operators) Act (Northern Ireland) 2010.

On appeal, the appellant relied on his genuine future intention to obtain a lorry. The central issue was whether the Department’s revocation decision was plainly wrong.

1. Appeal dismissed. The Department’s decision to revoke the operator’s licence was not plainly wrong and had to stand.

2. Under section 12A(2)(a) of the Goods Vehicle (Licensing of Operators) Act (Northern Ireland) 2010, a standard licence-holder must have an effective and stable establishment. Regulation 4A(2)(b) of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012 makes access to one or more authorised goods vehicles a requirement of that establishment. If the requirement is not met, section 24 permits revocation.

3. The Tribunal applied the appellate approach explained in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695. This was a review of the information before the Department, rather than a rehearing. The appellant bore the burden of showing that the reasoning and application of law required the Tribunal to reach a different view. The Tribunal also adopted the “plainly wrong” formulation drawn from Clarke v Edinburgh & District Tramways Co Ltd (1919) SC (HL) 35.

4. The appellant had held the licence for almost three years without access to a vehicle. He took no positive step to obtain one after receiving warnings and did not request a period of grace or a public inquiry. His later evidence that an uncle would provide a lorry had not been before the Department. Applying the practical observation in Priority Freight Ltd & Paul Williams 2009/225, the Tribunal treated the absence of action as material.

5. The Tribunal expressed sympathy for the appellant and noted that a fresh application, once he had access to a vehicle, could be considered on its merits. That observation did not affect the validity of the revocation.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal from the Department for Infrastructure’s decision of 4 April 2022 to revoke the operator’s licence.
• Department for Infrastructure for Northern Ireland: revoked the appellant’s Standard National Goods Vehicle Operator’s Licence under section 24 of the Goods Vehicle (Licensing of Operators) Act (Northern Ireland) 2010 because the establishment requirement was not met.