Norfolk Farm Produce Limited, Re

A licensing authority must act fairly when deciding whether to revoke an operator’s licence after a period of grace. Procedural unfairness arises where the authority relies decisively on material information unavailable to the operator before the deadline, and the operator could reasonably have taken steps capable of changing the outcome had it known that information.

Where the suitability of a proposed transport manager depends on an imminent public inquiry, fairness may require disclosure and a genuine opportunity to respond to its outcome. That may require a later deadline or a public inquiry. A clumsy reference to the wrong limb of a statutory requirement does not invalidate a revocation decision where the context makes the actual ground clear.

The Traffic Commissioner revoked Norfolk Farm Produce Limited’s operator’s licence under Goods Vehicles (Licensing of Operators) Act 1995, section 27(1), after the company lost its transport manager and did not, by the final period-of-grace deadline, secure acceptance of a replacement.

The company had nominated two candidates. The Commissioner knew that one candidate, Mr Shilling, was due to attend a public inquiry concerning his good repute three days after the deadline. The company did not know the nature of that inquiry. Following his disqualification, the Commissioner refused his nomination and directed revocation.

The company appealed under section 37(2). The central issue was whether the procedure leading to revocation was materially unfair.

1. Appeal allowed by majority. Upper Tribunal Judge Citron and Ms Pepperell held that the revocation direction was affected by a material error of law and set it aside. Mr Roantree dissented.

2. The statutory scheme required the company to satisfy the Traffic Commissioner that a proposed transport manager met the requirements of Goods Vehicles (Licensing of Operators) Act 1995, section 13A and Schedule 3. The company bore that burden. However, the procedure for deciding whether that requirement had been restored had to be fair.

3. The Commissioner knew that Mr Shilling faced a public inquiry at which his good repute was in issue. It did not disclose that material information to the company, or establish that the company knew it, before fixing the final deadline. The outcome of that inquiry was determinative of the subsequent refusal of his nomination and of revocation.

4. The deadline was also set three days before the inquiry. Even if the company had known that an inquiry was pending, it could not have known its result before the deadline. Fairness required a real opportunity to respond to that result before revocation, whether by pursuing the other nominee, seeking a further lawful extension, or requiring a public inquiry.

5. The procedural irregularity was capable of making a material difference to both the outcome and the fairness of the process. The majority therefore held that the revocation direction was legally flawed.

6. No further order was necessary. The stay had preserved the existing position and the company had made reasonable efforts to nominate an alternative transport manager. It was for the Traffic Commissioner to respond to that nomination. The tribunal also stated, obiter, that the revocation letter’s reference to section 13A(3)(a) was clumsy but not materially erroneous, since its context plainly invoked section 13A(3)(b).

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal and set aside the Traffic Commissioner’s revocation direction.
• Traffic Commissioner for the East of England Traffic Area: Directed revocation of the operator’s licence by letter dated 22 December 2023.