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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> High Voltage Maintenance Systems Ltd v [2011] UKUT 134 (AAC) (24 March 2011) URL: https://www.bailii.org/uk/cases/UKUT/AAC/2011/134.html Cite as: [2011] UKUT 134 (AAC) |
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TRAFFIC COMMISSIONER APPEALS
ON APPEAL from the DECISION of Mary Kane
Deputy Traffic Commissioner for the
South Eastern & Metropolitan Traffic Area
Dated 8 September 2010
Before:
Frances Burton, Judge of the Upper Tribunal
Patricia Steel, Member of the Upper Tribunal
David Yeomans, Member of the Upper Tribunal
Appellant:
HIGH VOLTAGE MAINTENANCE SYSTEMS LIMITED
Attendances:
For the Appellant: Jim Marsh of AITAC Consultancy
Heard at: Victory Houses
Date of hearing: 25 February 2011
Date of decision: 24 March 2011
DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be ALLOWED in part and the conditions attached to the licence be amended to omit reference to the maximum weight of the authorised vehicle to 18 tonnes, and to substitute a condition that only a rigid vehicle should be used; and to remove the time restrictions on weekday movement of vehicles save that on Saturdays, Sundays and Bank and Public Holidays the restrictions shall remain as ordered by the Deputy Traffic Commissioner.
1. This was an appeal against the Decision of the Deputy Traffic Commissioner for the South Eastern and Metropolitan Traffic Area dated 8 September 2010 when she confirmed her provisional Decision, dated 8 July 2010, refusing the Appellant Company’s application “to vary the conditions and undertakings accepted at the public inquiry on 15 June 2010” and confirming her written decision of 8 July 2010, in which she proposed to grant a restricted operator’s licence for one vehicle at an additional operating centre at D.J. Haulage Yard, Peeks Brook Lane, Horley, RH6 9ST, subject to conditions and undertakings.
2. The factual background appears from the documents, the transcript of the public inquiry and the written Decisions of the Deputy Traffic Commissioner, and is as follows.
(i) The Appellant Company was called to public inquiry in relation to its existing restricted licence authorising 7 vehicles and 3 trailers at a further operating centre where it wished to use another vehicle. The proposed second operating centre was already used by other operators: D.J. Haulage Limited was authorised for 9 vehicles there, subject to conditions relating to times for loading, unloading and operating. Two other operators had made applications to use the same operating centre but these had been withdrawn before the public inquiry. The Appellant’s other (original) operating centre is in Dartford, Kent, the application for which had been granted in 2009.
(ii) In September 2009 the Appellants made an application to vary their licence by adding two further Operating Centre, these being at The Interchange, Wested Lane, Swanley and at the premises of DJ Haulage Yard, Peeks Brook Lane, Horley, Surrey which is the subject of this appeal.
(iii)
Opposition to the new application
was received from Surrey County Council and 2 representations had been received
from local residents, which had, however, been received out of time and had not
been copied to the operator. The Council’s letter of objection, dated 28
September 2009, related to unsocial hours, an increase in dust and noise
on the
site, mud being carried out onto the public highway and damage to the verges,
and also to the fact that Peeks Brooks Lane was an unlit single carriageway
with no footpaths and restricted width, so that simultaneous entry and exit of
2 large vehicles was not possible. The local residents complained that the
statutory advertisement in the Crawley Observer had not been seen as it was not
a local newspaper, and also advanced grounds of objection similar to the
Council’s.
(iv) There had been a visit by a VOSA Traffic Examiner on 14 September 2009 in respect of one of the 2 other applications which had been made to use the site (but which had since been withdrawn). At that time the TE had confirmed that the site was suitable for 1 extra vehicle, albeit with some reservations. The Appellant’s application was originally refused by the Traffic Commissioner on 12 January 2010. This was after the Traffic Commissioner had notified the Appellant that he was minded to refuse it because the newspaper used for the advertisement did not, apparently, circulate in the area. However the operator had then responded, providing copies of emails that had been sent to the Central Licensing Office in December 2009, containing evidence that the newspaper did circulate in the Horley area where the proposed operating centre was situated. The Traffic Commissioner had then reviewed his decision and advised the Council and the representors that he was minded to grant the application, subject to similar conditions as those already imposed on the existing licence of D.J. Haulage Limited. The Appellant indicated that this was acceptable but the Council and the representors did not accept this resolution of the matter, and the application was therefore referred to public inquiry which took place on 15 June 2010 at Dorking, Surrey: in the meantime an interim licence was granted for 1 vehicle.
(v) Prior to the public inquiry the DTC was notified of the previous history of the site: no opposition had been received on D.J. Haulage’s original application in February 2003, but, when a further application was received in May 2003, the operating centre had been considered at public inquiry. D.J. Haulage’s licence was also reviewed and the conditions now on their licence imposed. These were that records of the authorised vehicles shall enter and leave the Operating Centre in forward gear, that authorised vehicles shall not be loaded or unloaded except between 0800 and 1930 hours Monday to Friday and and 0800 and 1300 hours on Saturday with no loading or unloading on Sundays or Bank or Public Holidays except in cases of emergency, and that records of the vehicle movements shall be kept and made available to the Traffic Commissioner on request. The DTC had also visited the site in daylight before the public inquiry of 15 June 2010.
(vi) At the public inquiry of 15 June 2010 the Appellant Company was represented by Mr Jim Marsh of the AITAC Consultancy, and Mr Andrew Pierce, Director, and Mr Jeffrey Addley, fleet manager attended. Mr David Gallen, the owner of the site, also attended as a witness for the Appellant Company. Traffic Examiner Liam Browne attended for VOSA, and Mrs Caroline Smith represented Surrey County Council, with Mrs Angela Goddard, Transportation Development Officer, who was a witness. The representors were Mr and Mrs King and Mr and Mrs Morrall. A Mrs Kemp and Mr and Mrs Lamond, who were representors in the case of one of the earlier applications which had been withdrawn, also attended. Mr Marsh had indicated that he had no objection to evidence being given by any of them.
(vii)
The evidence of the Traffic
Examiner was that he had not returned to the site since September 2009 at which
time the surfacing had been mainly dust, but accepted Mr Marsh’s assurance that
two thirds of the site had since been drained and concreted and that it was
planned to do this over the whole surface. He agreed that this would address
his concerns that dust and debris would be carried onto the public road, which
he accepted had also been resurfaced. However he was unable to comment as to whether
this would prevent damage to verges, but asserted that nothing could change the
fact that the road was unlit, without footpaths, it was narrow with small
verges and there would be environmental impact on the area if the application
was granted. Nevertheless he conceded that if the whole site had been cleared
there would be space for 3 vehicles, although he also confirmed that the Kings’
house was only 30-40 metres from the yard and that they would be affected by
noise
and dust.
(viii)
For the Council, Mrs Smith
submitted that there was a Certificate of Lawful Use dating from 2002 which
allowed 2 workshops, the use of the buildings for car repairs and of the open
yard for parking of cars and vans in connection with the business of car
repairs: also for storage of topsoil and other materials, in connection with a
building contractors and plant hire business run by the occupier of a
neighbouring house called Ellerton on a site abutting the road. She confirmed
that no other business could use the site under the Certificate and that
Enforcement Officers would take action if necessary. She said that the Council
had received complaints about noise
and unsocial movements, but not
specifically on environmental grounds. However conditions on the existing
licences had not always been complied with: on the morning of the public
inquiry the Appellant had been loading at 6.40 am and D.J. Haulage at 7.10 am.
The Council was concerned about dirt, dust, damaged verges, unsafe entry and
exit of vehicles and probable intimidation of pedestrians, cyclists and riders
on the road.
(ix)
The evidence of Mrs Goddard had
addressed the restricted width of the road, damage to the verges and highway,
vulnerability of pedestrians, cyclists and riders and the environmental impact
of noise
, fumes and vibration from the site. Her concerns about entry and exit
of vehicles were not related to the bellmouth of the site but to the width of
the road, which was subject to a 30 mph speed limit. She added that the
erection of a 20 mph sign by the site owner was illegal and would have to be
removed. She said that complaints had been made to VOSA’s Regional Intelligence
Unit but had not been responded to. In cross-examination by Mr Marsh, Mrs
Goddard said that she had seen vehicles swing so far out on exit from the site
that verges were damaged and that large vehicles would take up most of the road
which would be intimidating. She believed that large vehicles caused the
majority of damage to verges. She agreed that concrete surfaces would reduce
the dust and muck, and that a wheel washing facility would also help. She was
not concerned about space at the site but as to whether it was suitable as an
operating centre. She accepted that the existing storage and smaller vehicle
use could not be controlled but said that (while if the application was granted
there would be some control) she was concerned about the environmental effect
on the residents of the road – Peeks Brook Lane, which was manifestly adversely
affected.
(x)
For the operator, Mr Pierce gave
evidence that he was using one 18 tonne vehicle but needed two more vehicles,
probably another of 18 tonnes and a 7.5 tonne vehicle. He required no trailers
and accepted that the vehicles should be rigid only. He could accept hours conditions,
except in emergencies, but realised that any hours conditions would not apply
to other vehicles at the site such as vans. He said at present the site was used
for loading as it was a storage depot, and noise
only occurred when using the
fork lift truck or picking up vehicles, but that there was already substantial
noise
nuisance from the M23 and Gatwick Airport. He particularly needed the
site to store an HIAB vehicle which could not be kept at the Kent site as the driver lived nearer Horley. He had permission to park 3 vehicles but he
said there was space for 3 more. He considered that the configuration of the
road could be managed by careful drivers, and that although the business was a
24 hour operation he could manage the hours restrictions. He accepted that he
personally did not visit the site often but said that Mr Addley would know how
to manage with the hours limitations. He accepted that there were many more
vehicles used by his company that would visit the site (about 45 in fact) as
well as the authorised vehicles, and that the restrictions would only apply to
the authorised vehicles on the licence, but said he would do his best to
control unsocial use, although technically those other vehicles could load and
operate around the clock. He added that even if the operating centre was not
granted the HIAB would have to visit to collect equipment.
(xi)
This evidence was followed by Mr
Addley’s. He was the fleet manager, who said he only visited the site about
twice a month during daylight. He said he would give various written instructions
about the suppression of noise
in the restricted hours to his drivers, including:
no running engines when vehicles were stationary, not reversing round the yard,
not speeding on the road, and complying with timings, though he accepted that
the smaller vehicles, i.e. vans, could work outside these times. He confirmed
that the Swanley depot was only for storage and could not park large vehicles.
(xii)
Mr Gallen gave evidence that he
was the Director and Transport Manager for D.J. Haulage. He lived in Dorset but spent the week at the site in a caravan. He owned the house mentioned (Ellerton)
as well as the yard, but had let the house to a residential tenant. He
confirmed that he had received planning permission from Tandridge District
Council to resurface the yard and erect the workshops. He said he slept on site
3-4 nights per week and was never woken by noise
, so he did not think
noise
from the Appellant’s operation would be intrusive. He had never received any
complaint about the yard except for its untidiness, which had all changed, and
he had no knowledge of any enforcement plans. He agreed that he had let other
operators store vehicles at the yard even though they were not authorised, and
that one had been a 44 tonne truck. He confirmed that his company had
authorisation for 9 vehicles but used 6. He did not know that one of his
lorries had loaded at 7.10 am that morning.
(xiii)
Mr King spoke for all the
representors. He said he was fed up at being woken at 5 am and then constantly
until 8 am by noise
from the site, at weekends as well as during the week. He
could see into the site from his house and saw vehicles moving, the
noise
was
different from the motorway and
aircraft
. He was concerned that 3 extra
vehicles would increase the
noise
. Prior to Mr Gallen’s arrival the site had
been used for car storage, generating limited
noise
at limited times. Apart
from Mr King, who lived close by, the other representors were concerned
primarily with environmental damage caused by heavy traffic as they lived
further away. Mrs Smith for the Council supported all these points and asked
for the application to be refused.
(xiv)
In the circumstances the DTC considered there was a demanding balancing act necessary but concluded that the application
could be allowed provided conditions were attached to the licence, imposing the
same time restrictions as for D.J. Haulage, except that in addition she
restricted movement. She added that the undertakings Mr Pierce said he would be
able to give about enforcement of provisions to control noise
were also attached
and that no vehicle of greater weight than 18 tonnes was used. In accordance
with s.23 of the Goods Vehicle (Licensing of Operators) Act 1995 she invited
representations from all parties by 4 August 2010. This resulted in an email
from the Council dated 16 July 2010 maintaining their position that the site
was unsuitable and a letter dated 20 July from Mr Marsh expressing concern at
the weekday restrictions, but agreed to those proposed for the weekend, agreed
to the condition that vehicles should enter and exit in forward gear only, and
to the undertakings to be recorded on the licence. However they said they could
not agree to a limit of 18 tonnes on their vehicles and although they currently
operated 1 such vehicle they had in fact offered only to restrict their
vehicles to the rigid type since they might need a vehicle of greater weight
than 18 tonnes at some time.
(xv) Mr King wrote on 2 August 2010 maintaining the representors’ position and informing the DTC that the Appellant’s crane had been in use for loading at 7.20 am that morning in contravention of the hours conditions just imposed. Mr Marsh responded by letter of 3 September 2010 explaining that the crane had not been in use for loading at that time, and indeed that no unauthorised loading or unloading had taken place outside the permitted hours set out on the licence, but that it was conceded the vehicle had been started and its crane operated only to move it from its overnight position to one from which it could be driven out onto the road, and that this had been done before 8 am (when it was permitted to be loaded) because thefts had resulted in its having to be kept overnight in such a position as to prevent access to its large toolbox.
(xvi) Following these representations the DTC refused the application to vary the conditions in her final Decision dated 8 September 2010.
3.
At the hearing of the appeal the
Appellant company was again represented by Mr Marsh. The thrust of his argument
was that the Appellant company had only ever agreed to run solely rigid
vehicles from the site, without any weight restriction as they might on
occasion need a bigger vehicle than one of 18 tonnes. He added that he had made
representations to this effect upon receipt of the DTC’s draft Decision
inviting comments. He said the Appellant company needed the flexibility of
using a 24 or 32 tonne vehicle. He added that such a vehicle would be the same
width and only slightly longer, although with additional axles, However although
he had emphasised the adverse effect of being restricted to 18 tonnes in his
representations, the DTC obviously had not taken account of them or given them
“special consideration” as required by the section. He added that though they
had agreed at the public inquiry to the hours conditions they really wanted a
conditions free licence. He emphasised that the site was beside a really noisy
road near Gatwick, and that a lot of the noise
would be made by others, though
the Appellant company would try to keep loading times to the permitted hours. He
said the Appellant also needed to move outside the restricted hours. although
he accepted the loading times must remain.
4. We concluded that there had been a misunderstanding between the DTC and the Appellant’s representatives, as it was clear from the transcript that Mr Pierce had only said he had an 18 tonne vehicle, not that that was the largest he needed. We were surprised by the restriction as there would be little difference between vehicles of different weights (except some extra length) although significant difference between a rigid vehicle (which she had not recorded as offered by the Appellant) and articulated vehicles. We were unable to see the proposed benefit in restricting the vehicle to 18 tonnes. Accordingly we allow the appeal on this point and remove the weight restriction on this one vehicle.
5.
We understood the DTC’s wish to
reduce the environmental noise
nuisance to nearby residents but were also
unable to see the benefit in restricting movement, given that other vehicles
were going to and from the site all the time, although the restrictions on
loading and unloading made perfect sense, given the
noise at unsocial hours
mentioned by the Council and Mr King.
6. Accordingly we allow the appeal in part, removing the restrictions on weight of any of the vehicles to be operated at the centre, and removing the time restrictions on weekday movements, retaining the provisions ordered by the Traffic Commissioner on weekends and Bank and Public holidays.
Frances Burton
Judge of the Upper Tribunal
24 March 2011