Bolle Materieel BV
| Jurisdiction | UK Non-devolved |
| Judge | Judge Beech |
| Neutral Citation | [2016] UKUT 398 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Transport - Traffic Commissioner,DoE (NI) Appeals,DoE (NI) Appeals – Impounding,DoE (NI) Appeals – Other |
| Date | 05 September 2016 |
| Published date | 01 December 2016 |
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Neutral Citation Number: [2016] UKUT 0398 (AAC) Appeal No. T/2016/28
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS
ON APPEAL from the DECISION of
Kevin Rooney, Traffic Commissioner
for the North East of England dated 19 May 2016
Before: Her Honour Judge J Beech, Judge of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal
John Robinson, Member of the Upper Tribunal
Appellant:
Bolle Materieel BV
Appellant
and
Driver and Vehicle Standards Agency
Respondent
Attendances:
For the Appellant Simon Clarke of Counsel, instructed by Tinkler Solicitors
For the Respondent Tim Nesbitt of Counsel instructed by the Driving and Vehicle
Standards Agency.
Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ
Date of hearing: 23 August 2016
Date of decision: 5 September 2016
DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be DISMISSED
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SUBJECT MATTER: Impounding; whether the vehicle was undertaking
international carriage; whether a discretion should be read into the Goods
Vehicles (Enforcement Powers) Regulations 2001
CASES REFERRED TO: T/2011/60 Nolan Transport v Vehicle & Operator
Services Agency & Secretary of State for Transport (2012 UKUT 221 (AAC);
The Commissioners of Customs and Excise v Newbury (2003) 1 WLR 2131;
T/2011/25 Asset 2 Asset Limited (2011 UKUT 290 (AAC); Commissioners of
Customs v Ian Newbury (2003) EWHC 702 (Admin).
REASONS FOR DECISION
1. Introduction
This is an appeal against the decision of the Traffic Commissioner for
the North East of England (“the TC”) made on 19 May 2016 when he
refused to order the return of a vehicle to Bolle Materieel BV (“BM”)
which had been detained under reg.3 of the Goods Vehicles
(Enforcement Powers) Regulations 2001 (as amended) (“the 2001
Regulations”).
2. Unless permitted to do so under an exemption, it is unlawful in the
United Kingdom (“UK”) to use a goods vehicle on a road, for the
carriage of goods, either for hire or reward or for or in connection with
any trade or business carried on by the user of the vehicle, without
holding an operator’s licence issued under s.2 of the Goods Vehicles
(Licensing of Operators) Act 1995 (“the 1995 Act”). Use of a goods
vehicle in contravention of s.2 of the 1995 Act is a criminal offence
punishable by a fine not exceeding £5,000.
3. One of the exemptions referred to in paragraph 2 above, is the use of a
vehicle for international carriage by a haulier established in another
Member State (see s.2(2)(b) of the 1995 Act). International carriage is
defined by Council Regulation (EC) No. 1072/2009 (“the 2009
Regulation”) as being “a laden journey undertaken by a vehicle the
point of departure and the point of arrival of which are in two different
Member States, with or without transit through one or more Member
States or non-member countries”. It follows that the use of a vehicle
from another Member State with the appropriate authorisation to bring
an incoming international load into the UK will not be operating
unlawfully. We have underlined “laden” in the above passage as in the
Tribunal’s lead case on this issue T/2011/60 Nolan Transport v Vehicle
& Operator Services Agency & Secretary of State for Transport (2012
UKUT 221 (AAC) (“Nolan”), “laden” was omitted from the definition in
paragraph 14 of that decision as the Tribunal had erroneously quoted
from a previous Regulation which has since been superseded by the
2009 Regulation. By virtue of Article 2 of the 2009 Regulation,
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