Appeal Allowed: Breach of Natural Justice Requires Re-hearing

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/2015/54 IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of [NAME_1], Traffic Commissioner for West of England dated 24 August 2015

Before: Her Honour Judge J Beech, Judge of the Upper Tribunal [NAME_2], Member of the Upper Tribunal [NAME_4], Member of the Upper Tribunal

Appellants:

[redacted] For the Appellants: [redacted]

Heard at: Field House, 15-25 Bream’s [ADDRESS], [POSTCODE] Date of hearing: 26 January 2016 Date of decision: 2 February 2016

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal BE ALLOWED and the matter be remitted for re-hearing before a different Traffic Commissioner

SUBJECT MATTER:- adverse maintenance findings; breach of an undertaking to have two [NAME_12]; revocation of licence and disqualification of the Appellant; breach of the rules of natural justice in preventing the Appellant from calling a recently nominated transport manager to give evidence.

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CASES REFERRED TO:- [COMPANY_13] & [NAME_14] v Secretary of State for Transport (2010) EWCA Civ. 695; Priority Freight 2009/225; [NAME_15] (No.2) 2002/217.

REASONS FOR DECISION

1. This is an appeal from the decision of the Traffic Commissioner for the West of England (“[NAME_16]”) made on 24 August 2015 when she revoked the standard [NAME_17]’s licence held by the Appellant (“[NAME_8]”) with effect from 23.59 on 15 October 2015 and disqualified [NAME_8] from holding or applying for an [NAME_17]’s licence for a period of eighteen months. The orders were made as a result of adverse findings made under ss.26 and 27 of the Goods Vehicle (Licensing of Operators) Act 1995 (“the Act”), including loss of good repute and professional competence.

Background

2. The factual background to the appeal appears from the documents, the transcript and [NAME_16]’s written decision. [NAME_8] first held an [NAME_17]’s licence, trading as [NAME_9] which was granted in about 2006. In September 2009, [NAME_8] was called to a public inquiry for [NAME_16] to consider the merits of a variation application and to further consider whether regulatory action should be taken against [NAME_8]. A list of eleven prohibitions which had been issued between 2006 and 2009 were attached to the call up letter along with details of a drivers’ hours prohibition issued in 2009. There was also a schedule of convictions: two for unauthorised use of an operating centre; two for using more vehicles than permitted on the [NAME_17]’s licence; one for failure to produce tachograph records upon request at the [NAME_17]’s premises and one for diving whilst using a mobile phone. [NAME_16] also took into account adverse reports from a Vehicle Examiner and a Transport Examiner. [NAME_8]’s licence was revoked with effect from 25 November 2009 following findings that [NAME_8] had lost his good repute as an [NAME_17] and transport manager. He was given a period of grace to allow him to carry out his transport manager duties until the date of revocation along with an interim licence to specify an additional operating centre also until the date of revocation.

3. Perhaps anticipating that his licence was going to be revoked, [NAME_8] applied for a new standard national licence in October 2009. His application for seven vehicles and four trailers and three operating centres was granted on 31 December 2009 subject to the following undertakings: [NAME_8] and his transport manager ([NAME_18]) were to attend a one day seminar on [NAME_17] licensing compliance; a full systems audit along with inspection of four vehicles was to take place by a recognised trade association in May 2010, the report to be

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available upon request by the Office of the Traffic Commissioner (“OTC”) or VOSA (now DVSA).

4. In August 2012, a maintenance inspection was carried out by a traffic examiner which was marked “unsatisfactory”. A warning letter dated 21 November 2012 was issued to [NAME_8] which referred to the PG13G letter setting out the operational shortcomings of [NAME_8]’s business and his response to it. Neither of those documents were included in the Tribunal’s appeal bundle.

5. [NAME_8] then applied to increase his vehicle authority to ten vehicles and seven trailers. That was refused on 3 January 2013. However, the application was considered again and in April 2013, following an undertaking being given by [NAME_8] that two [NAME_12] would be nominated on [NAME_8]’s licence at any one time and that both would attend a two day CPC refresher course. [NAME_8] was then accepted as one of those two [NAME_12].

6. On 15 February 2014, one of [NAME_8]’s trailers was issued with an “S” marked prohibition for one immediate and two delayed items: wiring was found to constitute a fire risk; the ABS warning light was inoperative and the anti-lock braking system itself was inoperative. Later that day, a PG9 variation notice was issued for the ABS warning light and for the ABS system being inoperative. These prohibitions caused Vehicle Examiner (“VE”) Ford to carry out a maintenance investigation on 1 May 2014 which was marked “unsatisfactory” for the following reasons:

 PMI sheets were sent to [NAME_8] with the invoices and not with the vehicles.  Brake test results on PMI sheets were either ticked or endorsed as “satisfactory on road test” (“SORT”) even after new brakes had been fitted. There were no roller brake test records.  The standard of the handwriting on the PMI sheets was unacceptable;  Some of the vehicles were covering very high mileage between PMI inspections (as much as 25,000kms in six weeks).  There were no wheel nut torquing or re-torquing procedures in place.  The forward planner wall chart only showed the next inspection.  There were two PMI records missing.  Two vehicles and two trailers were inspected. One Offence Rectification Notice was issued for a tachograph which was out of calibration and a [POSTCODE] was issued for an ABS warning light being in-operative.  The driver defect books were “totally unsuitable” and there were many defects recorded on the PMI records which drivers should have noted during their daily walk round checks.

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 There was a high MOT failure rate: 38% initial fail rate [NAME_10] 5 years (national average 25%); 15% final fail rate (national average 14%); 57% initial fail rate [NAME_10] 2 years (national average 22%); 6% final fail rate (national average 13%);  There did not appear to be a second transport manager.

7. In response to the PG13G form, [NAME_19], Transport Consultant, wrote to [NAME_21] on 13 May 2014. He indicated that he and [NAME_8] had met with “[NAME_22]” of [COMPANY_23] (the maintenance provider) and the following points were dealt with:

 The standard of hand writing on the PMI records would be raised with the fitters working for [COMPANY_23].  The lack of proper recording of any brake testing would be remedied.  PMI sheets would be emailed to [NAME_8] before the vehicles were returned to the operating centres;  A new maintenance contract was to be drawn up and sent to [NAME_21].  Inspection intervals for the tractor units with high mileage would be reduced to 5 weekly or 20,000kms.

The response further advised that the forward planner was now complete for 2014; tachodisc driver defect report books had been introduced; the services of a [NAME_24] to instruct in driver defect reporting systems had been engaged and it was expected that a short “seminar” would be held within two or three weeks; [NAME_24] continued to analyse 100% of the tachograph records; a new torquing procedure had been introduced; one PMI sheet had been found, the absence of the other was the result of the vehicle being off the road; the tachograph calibration was rectified; the services of a second transport manager had been “acquired” and one [NAME_26] was expected to start work in early July 2014. It was also anticipated that a member of the office staff would sit the CPC examinations; the maintenance provider had been left “in no doubt” about the seriousness of the poor annual test pass rate and had “promised” to investigate the matter”.

8. In his public inquiry report dated 7 January 2015, [NAME_21] noted that it appeared that the services of a second transport manager had ceased from about March 2014 and as of December 2014, no second transport manager had been in post despite the [NAME_17]’s response to the PG13F&G notice. He went on to comment that the [NAME_17]’s shortcomings had been missed by not one transport manager but two. It was difficult to see where any day to day effective transport management had taken place. [NAME_8] had engaged the services of a transport consultant to respond to the PG13F&G notice but that should have been unnecessary had the transport manager exerted effective and constant control. The systems in place were not sufficiently robust and it was in this area that the [NAME_17] must improve by improvement of the systems themselves and monitoring.

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9. In the interim, a continuation check list dated 21 November 2014 was sent to the OTC. It informed [NAME_16] that the nominated transport manager, [NAME_27] had died and the document was annotated “see covering letter” although that letter is not within the appeal bundle. It would appear that a period of grace for the appointment of a second transport manager was requested but was refused and on 8 December 2014, [NAME_20] made an application to nominate [NAME_28] as the second transport manager with immediate effect. His nomination was duly accepted.

The Public Inquiry Hearing

10. On 9 February 2015, the OTC received an application from [NAME_8] to increase his vehicle authorisation by four vehicles and two trailers. It was that application in combination with the adverse maintenance inspection report that caused [NAME_16] to determine that [NAME_8] should be called to a public inquiry which took place on 21 July 2015. [NAME_21] was in attendance as was [NAME_8] who was represented by [NAME_39], [NAME_8]’s proposed second transport manager was also present. [NAME_16] was informed that [NAME_30] had ceased his employment as transport manager on 17 July 2015 and that [NAME_35]’s nomination had been submitted to central licensing unit (“CLU”) but had not been processed.

11. It was indicated from the outset that [NAME_31]’s public inquiry report was accepted in its entirety. [NAME_31] then proceeded to give [NAME_16] a compliance update along with his observations upon two sets of vehicle records that had been produced that morning by [NAME_8]. Since May 2014, the annual test initial pass rate had increased to 100%. There had been four roadside encounters with three PG9’s issued (they were not included in the appeal bundle). In February 2015, a delayed PG9 was issued for a badly torn wing to the tractor unit and the trailer was issued with a PG9 for an inoperable ABS warning light. In September 2014, a PG9 was issued for an ABS warning light being defective, a leaking exhaust system, a fuel leak, a brake disc fouling on the brake calliper and a corroded quick release valve. During the same encounter, the driver, [NAME_30], (who later became the second transport manager) was issued with a traffic prohibition for failing to produce drivers’ hours records. As for the two sets of vehicle records inspected by [NAME_31], they “left a lot to be desired”. The records were still being endorsed “SORT” (satisfactory on road test). On two of the PMI records, the brakes section was blank. On two records, a rear tyre was noted to have 2mm of tread left but it was not marked as a defect. There were many defects noted on the PMI records which should have been picked up by the drivers during their daily walk round check, for example, a PMI record noted that one tyre had “0mm” tread, yet the tyre had been ticked as satisfactory on the previous daily driver’s report; on another PMI record, a rear inner tyre had blown out but this had not been mentioned on the previous daily driver’s check. [NAME_31]

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also noted that on three PMI records, the dates had been wrong. The standard of writing on the PMI records had not improved although the forward planner was satisfactory and a new maintenance contract had been produced. [NAME_31] noted that the driver defect report books were in order but he was concerned about the effectiveness of the daily checks.

12. [NAME_8] then gave evidence and told [NAME_16] that after [NAME_31]’s visit in May 2014, he had had a meeting with “[NAME_22]”, an office clerk at [COMPANY_23] and the issues raised by [NAME_31] had been resolved. However, [NAME_22] was sacked four weeks later and the company did not “stick to what they were going to do”. Nevertheless, [NAME_8] thought that there had been an improvement in the PMI records. He had repeatedly asked [NAME_32] of [COMPANY_23] to undertake roller braking testing on his fleet but [NAME_32] had refused to do so, stating that such tests were unnecessary. [NAME_8] acknowledged that some of his vehicles which had been servicing a [NAME_34] contract were covering significant distances but that the contract was being terminated because it did not pay and as a result the overall mileage of the fleet had reduced by about 30%. [NAME_29] had started work “pretty well full time” as the second transport manager the day before the hearing. He and [NAME_24] would be training every driver in driver defect reporting and from the first week in August, all of the vehicles would be fitted with telephones which would send emails to the office which included information such as starting and finishing hours, mileage, fuel and defects. [NAME_35] would monitor the use of the phones and the information derived from them. One of the office staff ([NAME_36]) had already taken the CPC examinations but had failed part two and was awaiting the results of her re-sit.

13. [NAME_8] acknowledged that most of the defects recorded on the PG9 notices since [NAME_31]’s visit should have been detected by the drivers during their checks. The reason why two defects in ABS lights were identified during roadside encounters was because [NAME_8] had bought some trailers and it transpired they had been “hotwired” and had to be sorted out. As for the “badly torn wing”, [NAME_8] doubted whether that was “anything more” than a hole that could accommodate a fist. He accepted that he needed to oversee everything. He had allowed [COMPANY_23] to provide a “bad service” because the annual test results had improved and “time flies”. [NAME_36] was responsible for the filing of PMI records and if anything needed to be done following an inspection, [NAME_8] would receive a call. Every Sunday, [NAME_8] would visit his other two operating centres (a [NAME_34] depot and a quarry) and check the vehicle’s tyres and top up the oil and water.

14. [NAME_8] was taken to a PMI record dated 20 January 2015. He accepted that most of the eleven defects recorded should have been identified by drivers of the vehicle. [NAME_8] considered that matters would improve once the vehicles undertaking high mileage had stopped servicing the [NAME_34] contract and the new phone system had

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been installed. He averred that his tipper vehicles did not attract PG9 notices and were less problematic. [NAME_16] tested that assertion by looking at a PMI record for one of those vehicles. [NAME_8] accepted that the defects recorded on that record were items which should have been spotted by the drivers. [NAME_16] rose for a short period to allow [NAME_8] to give instructions to [NAME_20]. Upon her return, [NAME_8] accepted that his drivers were not doing their driver defect checks properly. [NAME_8] offered an undertaking that [NAME_24] and [NAME_35] would train all of the drivers on daily checking procedure within four weeks and that written evidence of that training would be sent to [NAME_16]. He would include a new term in the drivers’ contracts that failure to undertake driver defect checks would amount to gross misconduct. He would also ensure that roller brake tests would be undertaken on his vehicles even if [COMPANY_23] would not do them and he would keep records of those tests for two years. He accepted that he had told [NAME_16] “what she wanted to hear” on previous occasions and that was the reason he had taken [NAME_35] on so that he could oversee the systems an assist [NAME_8].

15. [NAME_16] then raised the apparent failure of [NAME_8] to comply with the undertaking he had given that two [NAME_12] would be nominated on his licence at any one time. He told [NAME_16] that the transport manager prior to [NAME_30] had been unwell and for ten weeks he had been insisting that he would return to work but [NAME_27] had then passed away. [NAME_30] had been rather a hasty appointment because [NAME_16] had refused to give [NAME_8] a period of grace (there is no correspondence in the appeal bundle about this). [NAME_16] then pointed out that she had refused the request because of the history of the licence and because [NAME_8] had already had plenty of time to nominate another transport manager and it would appear that even with two [NAME_12], his operation had continued to be non-compliant. In response, [NAME_8] prayed in aide that he had only had an office (rather than a kitchen table for 15 months) and with [NAME_35] as a full time transport manager, the operation was going in the right direction. [NAME_16] disagreed. [NAME_8] then stated “.. I appreciate there have been failings .. but .. we don’t have any accidents .. I know there have been problems with the brakes but .. we haven’t killed anybody ..”. [NAME_16] responded to this remark with understandable dismay and concern. She rose again for [NAME_20] to take instructions.

16. [NAME_20] then called [NAME_37] to give evidence. Before [NAME_35] was able to do so, [NAME_16] stated:

“Be very careful, [NAME_20]. Due to the challenges with [NAME_8], I am giving you some leeway, but you do know my starting point is that [NAME_12] that are yet to be considered in Leeds will not be considered by me by a backdoor PI ... I am not having [NAME_35] be talked about (sic) and consider things and all this in a public inquiry like this. I am saying no doubt this will have given him things to reflect on,

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but he must be allowed to go away and do things in quiet time. So I will allow the questioning to start, but I am not sure how far I am going to let it go”.

17. [NAME_20] then asked [NAME_35] about his experience as a transport manager. [NAME_16] then interjected and stated “it will be on the form in Leeds”. [NAME_20] then asked whether [NAME_35] had listened very carefully during the hearing and whether he was still willing to be nominated on the licence. [NAME_16] interjected again and stated “I said I want him to be given a bit of time to reflect on that before giving an answer today”. The hearing went on:

[NAME_20]: “I will rephrase the question” [NAME_16]: “Try” [NAME_20]: “I will try, madam. Thank you. Have you ever been in front of a Commissioner before?” [NAME_35]: “No” [NAME_20]: “What is your impression of what happened at the inquiry?” [NAME_16]: “That is a bit of an unkind question too”. [NAME_20]: “It might be unkind, madam, but [NAME_35] has never been here before”. [NAME_16]: “No, and I am sure –“ [NAME_35]: “I don’t really wanna be either again”. [NAME_16]: “Nobody ever wants to come back. Nobody wants to be here, nobody wants to come back. What are you actually trying to achieve, [NAME_20]?” [NAME_20]: “I am trying to establish that [NAME_35] has a record, a good record –“ [NAME_16]: “Well, all that will be dealt with through Leeds”. [NAME_20]: “Yes”. [NAME_16]: “I have read you evidence on that” (the Tribunal notes that there is no written evidence within the appeal bundle). [NAME_20]: “.. but that he is aware of his responsibilities –“ [NAME_16]: “Well, he signed a form in Leeds to say that”. [NAME_20]: “Yes, that is true. You probably will not let me pursue this either, but I would like to pursue the matter with him of what a transport manager, any transport manager does if his advice is not heeded and if his instructions-“ [NAME_16]: “Well he has signed that on the form”. [NAME_20]: “Just to confirm that, madam-“ [NAME_16]: “No, you are going behind the due process. I am entitled to see what Leeds has before I consider anything ... I have not got a clue what Leeds have got, or what checks they have done”. [NAME_20]: “There is one other question which I think you might allow me: What licence he holds, driving licences?” [NAME_16]: “No .. I do not see the relevance. I have never asked a transport manager what driving licences he holds. I do not need to hold a vocational driving entitlement to be an effective transport manager”. [NAME_20]: “No .. I accept that absolutely. I would never have suggested that, but-“

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[NAME_16]: “So what is the purpose of the question? .. I just do not see the point. It gives a false impression, or a glazed impression as to what is important ... He is here and he has heard everything .. That is the only point that you can really make. That is the one I was expecting.” [NAME_20]: “Equally, if you had any questions for him ..” [NAME_16]: “No, of course I do not”.

[NAME_16] then thanked [NAME_35] for attending the hearing and indicated that she was “really glad” that he had heard everything so that, moving forward, he would know exactly what the issues were so that he could form a view. He had to form a view in a “quiet time” and probably after a chat with [NAME_8]. Reflection was required. [NAME_20] was then invited to close his case.

18. In closing, [NAME_20] indicated that the variation application was not being pursued. [NAME_8] accepted that this was his last chance and it had taken this public inquiry for him to realise how much trouble he was in. He intended to get it right in the future and had already started to modify his operation for example by using the services of [NAME_24] and [NAME_35], concentrating on the driver defect reporting system and a new driver rule that failure to undertake a daily check would result in a day’s suspension from work. [NAME_8] offered further undertakings that roller brake testing would be undertaken every three months and when brakes were changed and he would attend a two day CPC refresher course. [NAME_20] asked [NAME_16] to find that [NAME_8]’s good repute was tarnished but not lost.

19. Prior to [NAME_16] publishing her decision, [NAME_20] made a request for a variation of [NAME_8]’s licence for parking purposes only as a result of his contract with [NAME_34] coming to an end and he provided examples of paperwork created in relation to the new daily driver walk round regime.

[NAME_16]’s decision dated 24 August 2015

20. [NAME_16] noted [NAME_8]’s surprise at finding himself at a public inquiry having attended previously, not least on two occasions in 2009. He relied heavily upon the 100% annual test pass rate to demonstrate improvements in his compliance systems. [NAME_16] described [NAME_8]’s evidence as “disquieting” causing her to adjourn on two occasions during the hearing. He was not a compelling witness and [NAME_16] was left with the impression that [NAME_8] did not exercise an enquiring mind and had simply allowed his business to continue to operate without any meaningful management. It was obvious that the driver defect reporting system was not effective and it defied belief that having been told by a traffic examiner that roller brake testing was required, that [NAME_8] continued with a contractor who refused to undertake such tests. There were a few positives. [NAME_8] had engaged positively with the public inquiry process and a replacement second transport manager had been nominated in a timely manner in July 2015. However, she had also noted that [NAME_8] had been without a second transport

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manager between March 2014 and November 2014. This was a bad case. There was the previous compliance history and despite a “huge wake-up call” in May 2014, [NAME_8]’s operation continued to suffer from significant shortcomings in July 2015. [NAME_16] had little confidence that [NAME_8] would operate in a compliant manner moving forward and in answer to the question “is the conduct of the [NAME_17] such that the [NAME_17] ought to be put out of business” the answer was “yes” (the questions posed in Priority Freight and [NAME_15] No.2 supra). [NAME_8] had failed to exercise continuous and effective management of compliance systems and had abdicated responsibility in relation to PMI inspections. It followed that his repute and professional competence as a transport manager was lost.

The Upper Tribunal Appeal

21. At the hearing of this appeal, [NAME_10] represented [NAME_8] and submitted a skeleton argument for which we were grateful. He conceded at the outset that [NAME_8] had failed to operate in a compliant manner. However, his failings could be rectified by the appointment of a robust transport manager. It followed that [NAME_10]’s first ground of appeal was that [NAME_16] was wrong to effectively prevent [NAME_20] from calling [NAME_35] to give evidence when his nomination as transport manager was relied upon by [NAME_8] to persuade [NAME_16] to give him another chance. [NAME_10] was not aware that [NAME_16] had a “starting point” or that she followed the practice of not hearing evidence from proposed [NAME_12] when they had not been formerly nominated or when the CLU had not had an opportunity to undertake the statutory checks as to professional competence and compliance. Indeed it is often the case that operators when faced with a public inquiry assemble a new compliance team including one or more consultants and/or [NAME_12] when the names of the [NAME_12] have not been formally nominated or checked. It is for [NAME_16] in any given case to hear the evidence from the proposed team and to then assess their professionalism and robustness and to determine whether they could turn a non-compliant operation into a compliant one, to further determine what weight to place upon their evidence and how [NAME_16]’s findings affect the balancing exercise. [NAME_16] in [NAME_8]’s case refused to allow [NAME_8] to put his case before her and as a result she breached the rules of natural justice.

The Tribunal’s determination

22. Paragraph 5 of Schedule 4 of the Goods Vehicles (Licensing of Operators) Regulations 1995 reads as follows:

“(1) Except as otherwise provided in this Schedule, the traffic commissioner shall determine the procedure at an inquiry.

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(2) Subject to sub-paragraph (5), a person entitled to appear at an inquiry in accordance with paragraph 3 of this Schedule shall be entitled to give evidence, call witnesses ...

(3) The giving of evidence, the calling of witnesses .. shall be at the traffic commissioner’s discretion. ...

(5) Without prejudice to sub-paragraph (3), the traffic commissioner may refuse to permit – (a) the giving or calling of evidence ... which he considers to be irrelevant, repetitious, frivolous or vexatious.

23. It is clear from paragraph 5 of Schedule 4 of the 1995 Regulations that [NAME_16] does have a discretion to refuse an [NAME_17] permission to call a witness. However, the discretion must not be exercised so as to prevent an [NAME_17] from presenting a crucial aspect of his case when such presentation does not fall foul of paragraph (5)(5) of Schedule 4. The Tribunal has quoted from the transcript of the interaction between [NAME_16] and [NAME_20] at length at paragraph 17 above because it is clear that whether for policy reasons or otherwise, [NAME_16] refused to allow [NAME_8] to put his case. Clearly, [NAME_35]’s proposed involvement in [NAME_8]’s operation was [NAME_8]’s only or main hope of persuading [NAME_16] that he should be given another chance. This he was denied. We agree with [NAME_10] that it is not unusual for Traffic Commissioners to hear evidence from newly recruited consultants and [NAME_12] at public inquiries when an [NAME_17] has sought to address its shortcomings only following receipt of a call up letter. We do not agree with [NAME_16] that to hear evidence from a newly nominated transport manager would be “going behind due process”. It is perfectly proper for an [NAME_17] to ask a [NAME_16] to hear the evidence of a proposed transport manager, subject to the results of the CLU checks so that [NAME_16] can make his or her own assessment of the transport manager’s abilities and experience [NAME_10] and above the holding of a certificate of professional competence and in particular their credibility in giving evidence as to the compliance steps they are proposing to take and their ability to steer an otherwise non-compliant [NAME_17] into compliance. We are satisfied that an [NAME_17] should have the opportunity of being able to walk away from a public inquiry in the knowledge that their reasonable case has been fully put before [NAME_16] irrespective of whether that case is sufficient to avoid serious regulatory action. [NAME_8] was denied that opportunity in this instance.

24. We agree with [NAME_16] that this is a bad case of non-compliance and that [NAME_8], who has a poor regulatory history, has failed to heed warnings and advice. We have had to ask ourselves whether the evidence of [NAME_35] would have made any difference to [NAME_16]’s findings and whether the appeal should nevertheless be dismissed? Reluctantly, we have concluded that we cannot answer that question in the affirmative because we do not know what [NAME_35] would have said and what impression he would have made upon [NAME_16]. It may

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very well be that his evidence would not have made any difference to [NAME_16]’s assessment of [NAME_8] and his ability to operate compliantly with or without a robust transport manager, but we cannot say. As a result, this appeal is allowed and the matter is remitted for re-hearing before a different [NAME_16] or deputy. It may very well be that a further report from a traffic examiner would assist [NAME_16] in determining the position as at the date of the new hearing.

25. [NAME_10] was also critical about the way that [NAME_16] conducted the public inquiry in a number of respects. Those criticisms we do not uphold. Further, he submitted that [NAME_16] had fallen into error when she found that [NAME_8] had been without a second transport manager from about March 2014 to December 2014. We are satisfied that upon the basis of the unchallenged report of [NAME_31], [NAME_16]’s finding was one which she was clearly entitled to make.

26. To conclude, we are satisfied that as a result of a breach of the rules of natural justice, the Tribunal is impelled to allow this appeal as the test in [COMPANY_13] & [NAME_14] v Secretary of State for Transport (2010) EWCA Civ. 695 is satisfied.

Her Honour Judge J Beech 2 February 2016