Lions Logistics Limited v Compas75 Limited

Under s.36 of the Goods Vehicles (Licensing of Operators) Act 1995, a traffic commissioner may review a licensing decision only where a procedural requirement imposed by or under legislation has not been complied with. The expression refers to an express statutory or delegated-legislation requirement, not general public-law standards of fairness, adequacy of reasoning or proper decision-making.

A person may have an interest under s.36(2)(b) without being an applicant, operator, statutory objector or statutory representor. The interest must promote good regulatory decision-making and be specific to the decision, rather than merely an industry-wide or public interest. The Upper Tribunal will allow an appeal only if the traffic commissioner’s reasoning and application of the law require a different view.

The Respondent applied to vary its operator’s licence by adding an operating centre, increasing its vehicle and trailer authorisation, and upgrading the licence. The Appellant complained that the Respondent had previously used the premises without authorisation and sent information to the Traffic Commissioner.

The variation was granted, accompanied by a strong warning concerning the unauthorised use. The Appellant sought a review under s.36 of the Goods Vehicles (Licensing of Operators) Act 1995. The Traffic Commissioner accepted that the Appellant had an interest in the decision, but concluded that no statutory procedural requirement had been breached. The central issues were the scope of “interest” under s.36(2)(b), the meaning of “procedural requirement” under s.36(1), and whether the decision was plainly wrong.

1. Appeal dismissed. The Upper Tribunal held that the Traffic Commissioner was entitled to decide that the Appellant appeared to have an interest in the variation decision under s.36(2)(b), although the reasoning adopted by the Traffic Commissioner was not accepted in full.
2. The phrase “a person who appears to him to have an interest” is wider than the categories of applicants, operators and persons entitled to object or make representations under ss.12 and 19. The interest must relate to promoting good decision-making in the commissioner’s regulatory functions and must be specific to the decision. It must be greater than the general interest of members of the public or transport operators as a class. A particular impact on fair competition or environmental interests may be relevant.
3. The power under s.36(1) is limited to non-compliance with a procedural requirement imposed by or under an enactment. That means an express requirement in primary or delegated legislation. It does not include general requirements of fairness, proper administrative practice, sufficient reasoning, or compliance with guidance in the Senior Traffic Commissioner’s Statutory Documents. The relevant statutory requirements included publication, advertising, consideration of duly made objections and representations, specified matters to be considered, public-inquiry requirements, and notification duties. None had been breached.
4. The Appellant was not entitled to a statement of reasons under regulation 22 of the Goods Vehicles (Licensing of Operators) Regulations 1995, because it had not made representations in accordance with the statutory provisions. The Appellant’s representations concerned repute and unauthorised use, rather than environmental matters, and were also out of time under regulation 12.
5. Alternatively, persistent unauthorised use of an operating centre was capable of going to good repute, and proper determination of the variation application required the Traffic Commissioner to consider how that conduct should be dealt with. However, the Upper Tribunal did not have all the documents available to the Traffic Commissioner and could not conclude that the necessary information had not been considered. Applying the plainly-wrong standard in Bradley Fold Travel Limited and Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695, the decision could not be disturbed.

• Traffic Commissioner for the West Midlands: granted the Respondent’s variation application and later refused the Appellant’s s.36 review request.
• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal against the review decision.