SS Green Transport Ltd

An appellate tribunal will not interfere with a traffic commissioner’s decision unless it is plainly wrong. In assessing a prospective operator’s good repute, the tribunal may draw legitimate inferences from the overall evidential picture. Separate corporate personality does not answer a substantiated concern that one company will be used as a front through which a sanctioned operator continues to operate.

Shared facilities, funding, advisers, market activity and operational scale may be commercially explicable in isolation. Taken together, however, they may establish an absence of the required independence, or “clear blue water”, between the businesses. Refusal of an operator’s licence may be proportionate where fronting would enable avoidance of the licensing regime and undermine safety and fair competition.

The appellant sought a standard international goods vehicle operator’s licence for five vehicles and five trailers. Its sole director was the daughter of the director of another transport company whose licence had been revoked and who had been disqualified indefinitely from acting as a transport manager shortly before the application.

The Deputy Traffic Commissioner refused the application on 19 January 2024 under Goods Vehicles (Licensing of Operators) Act 1995, section 13A(2)(b), because he was not satisfied that the prospective operator was of good repute. He considered that the appellant might be a front for the other company. The appellant appealed to the Upper Tribunal, which had to decide whether that decision was plainly wrong.

1. Appeal dismissed. The Deputy Traffic Commissioner’s decision was not plainly wrong. It was correct to regard the evidence as showing a clear case of fronting and to refuse the licence.

2. The tribunal applied the appellate standard stated in Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695. Its task was not to substitute its own commercial assessment, but to determine whether the Deputy Traffic Commissioner’s conclusion was plainly wrong.

3. The absence of any business plan was a substantial and legitimate concern. Although projections may contain uncertainty, a genuinely independent start-up business requires some plan for income, costs and repayment of funding. The director’s lack of understanding of a profit and loss account reinforced the Deputy Traffic Commissioner’s assessment.

4. The relevant question was the cumulative picture, not whether each feature could separately have an innocent commercial explanation. The shared operating centre, maintenance provider, consultants, market segment, start-up funding and similar fleet size supported the inference that the appellant lacked sufficient independence from the director’s father’s company. The flexible family loan did not materially demonstrate independence.

5. The fact that the companies were separate legal entities did not meet the concern that the appellant could be used as a front for the other company. Fronting involves deception and may allow an operator to evade regulatory control. Given the recent sanctions against the father and the combined evidential factors, refusal was proportionate to protect the licensing regime, safety and fair competition.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and upheld the refusal of the operator’s-licence application: [2024] UKUT 172 (AAC).
• Deputy Traffic Commissioner for the Eastern Area: following a public inquiry, refused the application on 19 January 2024 under section 13A(2)(b) of the Goods Vehicles (Licensing of Operators) Act 1995.