Nolan Transport T 60 2011
| Jurisdiction | UK Non-devolved |
| Judge | His Honour Judge Brodrick |
| Judgment Date | 02 July 2012 |
| Neutral Citation | 2012 UKUT 221 AAC |
| Subject Matter | Transport - Traffic Commissioner |
| Respondent | VEHICLE & OPERATOR SERVICES AGENCY & SECRETARY of STATE for TRANSPORT |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | T 60 2011 |
| Appellant | Nolan Transport |
[2012] UKUT 221 (AAC)
TRAFFIC COMMISSIONER APPEALS
ON APPEAL from the DECISION of Nick Jones
TRAFFIC COMMISSIONER for the Welsh Traffic Area
Dated 15 September 2011
Before:
His Hon Michael Brodrick, Judge of the Upper Tribunal
Her Hon Judge Beech, Judge of the Upper Tribunal
Stuart James Member of the Upper Tribunal
Appellant:
NOLAN TRANSPORT
and
First Respondent:
VEHICLE & OPERATOR SERVICES AGENCY
and
Second Respondent:
SECRETARY of STATE for TRANSPORT
Attendances:
For the Appellant: Tim Nesbitt, instructed by Dyne, Solicitors
For the First Respondent: Chris Hallsworth, of Woodfines, Solicitors
For the Second Respondent: Gordon Nardell QC, instructed by the Treasury Solicitor
Heard at: Victory House, 30-34 Kingsway, London
Date of hearing: 27 & 28 March and 16 April 2011
Date of decision: 2 July 2012
DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be DISMISSED.
SUBJECT MATTER:- International issues: International Carriage, Cabotage, Combined Transport; Impounding: approach, lack of knowledge, proportionality; Miscellaneous: Independence of Traffic Commissioners
CASES REFERRED to:-
Air Canada v UK (1995) 20 EHRR 150,
Agip (Africa) Ltd v. Jackson [1992] 4 All ER 385 at 405, [1990] Ch 265 at 293
Agip SpA v. Navigazione Alta Italia Spa, The Nai Genova [1984] 1 Lloyd’s Rep 353
Asset 2 Asset Ltd Appeal 2011/25
Baden v. Societe Generale pour Favoriser le Developpement du Commerce et de l’Industrie en France SA (1982) [1992] 4All ER 161, [1993] 1WLR 509
BCCI Ltd v Akindele [2000] 4 All ER 221
Berkley v Secretary of State for the Environment and another [2001] 2 AC 603
Cia Maritima San Basilio SA v. Oceanus Mutual Underwriting Association (Bermuda) Ltd, The Eurysthene [1976] 3All ER 243 at 251, [1977] QB 49 at 68
Close Asset Finance Ltd v Secretary of State for Transport Appeal 2003/3
Commission for the New Towns v. Cooper (GB) Ltd 1995 2All ER 929
Customs and Excise Commissioners v Newbury [2003] 1 WLR 2131
Ghaidan v Godin-Mendoza, [2004] UKHL 30
Lindsay v Commissioners of Customs & Excise [2002] EWCA Civ 267
Lombard North Central PLC Appeal 2011/21
Morsil Properties Ltd v. Allied-Lyons plc [1986] CA Transcript 1132
Petch v Gurney [1994] 3 All ER 731
R v. Senior (1899) 1QB 283
Romantiek Transport BVBA and others, Appeal 2007/172
WC Commercials Ltd Transport Tribunal Appeal 134/2002
White v. White [2001] 2 All ER 43, HL
ACTS, REGULATIONS, ARTICLES and other DOCUMENTS REFERRED to:-
Article 8.3 – Article 8.3 of Regulation (EC) No. 1072/2009 of the European Parliament and of the Council,
Regulation 1072/2009 - Regulation (EC) No. 1072/2009 of the European Parliament and of the Council,
The Impact Assessment – The Commission Staff Working Paper, dated 23 May 2007, which accompanied the Proposal
The Proposal - ‘Proposal for a Regulation of the European Parliament and of the Council’, dated 1 June 2007
The Protocol- Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Sentencing Act - The Powers of Criminal Courts (Sentencing) Act 2000
The 1897 Act - The Police Property Act 1897
The 1960 Regulation - Council Regulation No. 11 of 27 June 1960
The 1985 Act – The Transport Act 1985
The 1992 Directive - Council Directive 92/106/EEC of 9 December 1992
The 1992 Regulation - Council Regulation (EEC) No. 881/92,
The 1995 Act - Goods Vehicles (Licensing of Operators) Act 1995
The 1995 Regulations - Goods Vehicles (Licensing of Operator’s) Regulations 1995
The 1996 Regulations - The Goods Vehicles (Licensing of Operators) (Temporary Use in Great Britain) Regulations 1996
The 2000 Act – The Transport Act 2000
The 2001 Regulations - Goods Vehicles (Enforcement of Powers) Regulations 2001
The 2009 Regulations - Goods Vehicles (Enforcement of Powers) (Amendment Regulations) 2009
The 2010 Regulations - Goods Vehicles (Licensing of Operator’s) (Amendment) Regulations 2010,
ABBREVIATIONS
DfT - Department for Transport
AG – Amended Grounds of Appeal
CMR - Convention relative au contrat de transport international de marchandises par route, also known as - The Convention on the Contract for the International Carriage of Goods by Road 1956
Combined Transport – Use under Article 1 of Council Directive 92/106/EEC and the 1996 Regulations
GFP – Graduated Fixed Penalty
HGV – Heavy Goods Vehicle
JN/1 - Draft Cabotage and Combined Transport. Overview by Ireland, (see paragraph148).
JN/2 - Report of meeting between the Department of Transport, Ireland, and the Department of Transport, UK, in relation to cabotage, combined transport, and international journeys, (see paragraph s 149 &150)
NT – Nolan Transport
NRT - NRT Logistics Ltd, a subsidiary of NT
OLR Division - Operator Licensing and Roadworthiness Division
SVE – Senior Vehicle Examiner
TE – Traffic Examiner
Temporary use under Article 1 of 1072/2009 – Use under Article 1.5(d) of Regulation 1072/2009
The Daf - DAF Tractor Unit 07WX6976 impounded on 17 May 2011
The Mercedes - Mercedes Actros 2 axle articulated vehicle 03WX718 impounded on 20 May 2011
VOSA – Vehicle & Operator Services Agency
VE - Vehicle Examiner
[Amended pursuant to Rule 42 of The Tribunal Procedure (Upper Tribunal) Rules 2008]
BACKGROUND
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This is an appeal from the decision of the Traffic Commissioner for the Welsh Traffic Area who refused the Application by the Appellants, Nolan Transport, (“NT”) for the return of two Vehicles impounded by the Respondents, (“VOSA”).
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The unusual constitution of the Tribunal, namely two judicial members and one specialist member was approved by the President of the Administrative Appeals Chamber in accordance with Paragraph 3(c)(ii) of the Practice Statement on the Composition of Tribunals, issued on 1 October 2010. In giving approval the President of the AAC had regard to the special difficulty of some of the points of law and the important points of principle raised by the appeal.
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NT is an unlimited company established in the Republic of Ireland although all of the company’s shares are held by Vespasian and Trajan Limited, entities which are based in the Isle of Man. There are thirteen directors of the company, all of whom are siblings. The principal directors, for the purposes of this appeal, are Richard Nolan, who describes himself as being responsible for the strategy of the company and John Nolan who is responsible for IT and journey planning.
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NT holds an operator’s licence to operate national haulage within the Republic of Ireland. The company also holds a community authorisation to undertake international carriage of goods. To that end it operates over 450 tractor units and over 1,000 trailers and employs 500 people. Its operating centre is in Co. Wexford but it has sales offices in London, Bridgend, Leicester and Cherbourg. NT’s predominant mode of haulage, within Great Britain, is the movement of trailers, which travel unaccompanied on ferries between Rosslare and either Fishguard or Pembroke Dock. At present, an average of 1,385 journeys a week are undertaken by NT vehicles within Great Britain, in order to undertake international carriage, cabotage operations and combined transport and to reposition trailers. As far as the management of NT was concerned, the movement of trailers travelling unaccompanied on the ferries fell within the definition of “international carriage”, a term which will be considered and explained in due course, together with the other expressions which have just been mentioned. NT does not hold an ‘operator’s licence’ in GB, in other words a licence, issued by a Traffic Commissioner, under the provisions of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"]. In May 2011 two vehicles operated by NT were stopped by VOSA employees, on separate occasions. VOSA took the view that NT was operating in contravention of the 1995 Act and, as a result, they impounded both vehicles. The drivers and, at a later stage, those in charge of NT asserted that the vehicles were being operated within exemptions to the general requirement to hold an operator’s licence, or that, if they were wrong on this point, they did not know that the vehicles were being used in contravention of the 1995 Act. They applied to the Traffic Commissioner for the return of the vehicles on one or other of these grounds. Their applications were rejected by the Traffic Commissioner, from...
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