Midland Container Logistics Limited & James Donlon D K Barnsley & Sons Limited
| Jurisdiction | UK Non-devolved |
| Judge | Judge Beech |
| Neutral Citation | [2020] UKUT 5 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Transport - Traffic Commissioner,DoE (NI) Appeals,Beech,J |
| Date | 14 February 2020 |
| Published date | 03 March 2020 |
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Neutral Citation Number: [2020] UKUT 0005 (AAC)
Appeal Nos. T/2018/20 & T/2018/28
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS
IN AN APPEAL FROM THE DECISIONS OF
Nick Denton, Traffic Commissioner for the
West Midlands dated 22 March 2018
and Kevin Rooney, Traffic Commissioner for
the West of England dated 2 May 2018
Before: Her Hon. Judge J Beech, Judge of the Upper Tribunal
Leslie Milliken, Specialist Member of the Upper Tribunal
David Rawsthorn, Specialist Member of the Upper
Tribunal
Appellants:
MIDLAND CONTAINER LOGISTICS LIMITED & JAMES DONLON
D K BARNSLEY & SONS LIMITED
In attendance: Mr Laprell of Counsel instructed by Backhouse Jones solicitors on behalf of
the First and Second Appellants and by Pellys solicitors on behalf of the Third Appellant and
Mr Sadd of Counsel instructed by the Government Legal Department on behalf of the
Secretary of State for Transport
Heard at: The Rolls Building, Fetter Lane, London, EC4A 1NL
Date of hearing: 17 to 19 September 2019
Date of decision: 6 January 2020
DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that the appeals be ALLOWED and that the matters be
remitted for rehearing
SUBJECT MATTER:-
AdBlue emulators; whether the fitting of an emulator can be for any purpose other
than to give the misleading impression that engine emission standards are not being
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met; whether such an act can/should be categorised as “dishonest” or “deceitful”;
whether the fitting of an emulator is in itself unlawful; whether a recording of
excessive emissions is required before any adverse findings can be made arising out
of the fitting of such a device; whether in principle, the fitting of an emulator
can/should be compared to the fitting of a magnet to a tachograph; call up letters;
approach to evidence.
CASES REFERRED TO:- R (Client Earth) v The Secretary of State for the
Environment, Food and Rural Affairs (2015) UKSC 28; R (Client Earth) (No.2) v
Secretary of State for the Environment, Food and Rural Affairs (2016) EWHC 2740
(Admin); 4 All ER 724; Muck It Limited and others v The Secretary State for
Transport (2005) EWCA Civ 1124; R (Client Earth) (No.3) v Secretary of State for
the Environment, Food and Rural Affairs, the Secretary State for Transport and
Welsh Ministers (2018 EWHC (Admin) 315; T/2013/21 Société Generale Equipment
Finance Limited v Vehicle & Operator Services Agency; 2001/72 A R Brookes;
T/2018/19 T.R. Benny Ltd & Thomas Benny; T/2019/32 & 33 CM Coaches Limited &
Michael Hazell; Edward Coakley Bus Company Ltd and Central Bus Company Ltd
(2) (2003) Scot SC 315; 2006/313 D Lloyd; T/2012/34 Martin Joseph Formby t/a G &
G Transport; T/2013/38 Hobart Court Property Management Ltd v John Valerie Kent;
T/2013/63 Balwant Singh Uppal t/a Professional Chauffering Services and PCS
Limos Ltd; T/2017/55 Alistair Walter; 2009/225 Priority Freight & Paul Williams;
2002/217 Bryan Haulage No.2; Bradley Fold Travel Ltd v Secretary of State for
Transport (2010) EWCA Civ 695
REASONS FOR DECISION
Introduction
1. These are appeals from the decisions of the Traffic Commissioners for the
West Midlands and the West of England made on 22nd March and 2 May 2018
respectively. Each principally concerned issues arising out of the discovery of
devices fitted to the selective catalytic reducers of vehicles operated by the
Appellant companies during roadside checks, which the DVSA contended
were AdBlue® (“AdBlue”) emulators. In the case of Midland Container
Logistics Limited (“MCL”) in which it was accepted that an AdBlue emulator
had been fitted to three vehicles, the outcome of the public inquiry was that
it’s operator’s licence was curtailed from twenty-eight vehicles to five for a
period of fourteen days and thereafter, to twenty-two vehicles for an indefinite
period and Mr Donlon, the transport manager and sole director of MCL, lost
his good repute as transport manager and was disqualified from acting as
such until he had attended a two day transport manager CPC refresher
course. In the case of D K Barnsley & Sons Limited (“DKB”), it’s licence was
revoked. The Appellants have the benefit of a stay.
2. There were originally five appeals listed for hearing on a conjoined basis as
they were the first to be filed with the Upper Tribunal which predominantly
concerned the discovery of emulators by the DVSA. It was determined that
as a result, the appeals should be heard together and the Secretary of State
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for Transport (“SofS”) was invited to be joined as a Respondent so that the
generic issues could be determined in an informed manner. As it transpired,
two companies withdrew their appeals and a third, T/2018/22 Sheppard
Commercial Services Ltd, whilst heard with those of MCL and DKB, was
sufficiently distinguishable on the facts that the appeal has been separately
determined and the decision published.
3. For reasons which the Upper Tribunal need not set out, there has been a
considerable delay in the appeals being heard. At an early stage, the Upper
Tribunal was invited by the SofS to identify the issues raised in the Appellants’
grounds of appeal and written submission which the SofS should specifically
address. Five questions were posed:
1. Whether the fitting of an emulator can be for any purpose other than to
give the misleading impression that engine emission standards are being
met;
2. Whether such an act can/should be categorised as “dishonest” or
“deceitful”;
3. Whether the fitting of an emulator is in itself unlawful;
4. Whether a recording of excessive emissions is required before any
adverse findings can be made arising out of the fitting of such a device;
5. Whether in principle, the fitting of an emulator can/should be compared to
the fitting of a magnet to a tachograph.
4. The Tribunal has been greatly assisted by the detailed written and oral
submissions of Mr Laprell on behalf of the Appellants and Mr Sadd on behalf
of the SofS.
The Background Regulatory Framework
Air Quality Generally
5. The EU has long been concerned with ambient air quality, it’s assessment
and management (see for example, Directives Directive 88/77/EC and
96/62/EC) and has set limits for ambient polluting particulates (see Directives
80/779/EEC, 1999/30/EU and Directive 2000/69/EC). By Directive
2008/50/EC on “Ambient Air Quality and Cleaner Air for Europe” (the 2008
Directive), the EU set out objectives for ambient air quality and measures for
assessment of air quality. The Directive required Member States to undertake
air quality assessments and to devise an Air Quality Plan in order to meet the
stated objectives.
6. The UK has endeavoured to comply with the 2008 Directive although it has
faced considerable challenges in doing so. The UK’s first Air Quality Plan
was produced in 2011 and was found to be inadequate and therefore unlawful
by the Supreme Court in the case of R (Client Earth) v The Secretary of State
for the Environment, Food and Rural Affairs (2015) UKSC 28, 4 All ER 724.
The second Air Quality Plan was produced in 2015 and that too was held to
be inadequate and therefore unlawful in the case of R (Client Earth) (No.2) v
Secretary of State for the Environment, Food and Rural Affairs (2016) EWHC
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