Appeal Allowed: Procedural Irregularities in Notice Service

[NAME] [2023] UKUT 123 (AAC)

1

IN THE UPPER TRIBUNAL UA-2023-000014-T ADMINISTRATIVE APPEALS CHAMBER

On appeal from the Decision of [NAME], Traffic Commissioner for the East of England dated 15th December 2022

[NAME] Appellant and

Driver and Vehicle Standards Agency Respondent

Before: Upper Tribunal Judge Her Honour Judge Beech

Specialist Member of the Upper Tribunal Stuart James

Specialist Member of the Upper Tribunal Gary Roantree

Hearing date: 23rd May 2023

Representation: Appellant:

[redacted] Respondent: [redacted]

DECISION

The appeal is ALLOWED

Subject Matter: Impounding; Procedural irregularity

a) Cases referred to: None

UA-2023-000014-T [NAME] 2 REASONS FOR DECISION

1. This is an appeal from the decision of the Traffic Commissioner for the East of England (“TC”) dated 15th December 2022 when he refused to return impounded vehicle X4GKA, a Mercedes Actros with a gross maximum weight of 18,000kgs (“the vehicle”) to the Appellant (“[NAME]”) under regulation 4(3) of the Goods Vehicles (Enforcement Powers) Regulations 2001 (as amended) (“the Regulations”).

2. The background to this appeal can be taken very shortly (the full details are contained in the Impounding Report and the Appeal Bundle). On 10th September 2022, [NAME] was driving the vehicle on the M1 towards Derbyshire. There was reason to stop [NAME] and she was guided into [COMPANY] which, despite having a Derbyshire postcode, is actually within the county of Leicestershire. The following detail is relevant: • The vehicle which had two seats in the cab, was found to be loaded with household furniture. • [NAME] was wearing the uniform of [COMPANY] as was one of her companions. • a third was positioned unrestrained in the sleeping compartment of the vehicle. • [NAME] was not using a tachograph. • She did not have a driver’s CPC. • The registered keeper of the vehicle was [NAME] following its transfer from the linked company [COMPANY] which had previously held an operator’s licence which had been revoked. • The vehicle was not specified on any operator’s licence. • [NAME] did not have any documentation with her. According to the evidence of Traffic Examiner Carpenter (which the TC accepted), [NAME] gave inconsistent answers as to the purpose of the journey (business or personal) and admitted that she was driving for “her boss” , [NAME] of [NAME] and that the vehicle was owned by that company. It was noted that the first person [NAME] contacted was [NAME]. The vehicle was detained and the required notifications appeared to have been made under Regulation 9 of the Regulations. 3. [NAME] applied for the return of the vehicle upon the basis that she was the owner of the vehicle and that she had been using it for personal use at the time the vehicle was stopped. The hearing took place on 15th December 2022. Apart from the written and oral evidence of [NAME] that the vehicle belonged to her and a letter which was not in the form of a witness statement and did not include a statement of truth, in which [NAME] (who did not attend the hearing) averred that she had given the vehicle to [NAME] as a gift, there was no evidence before the TC that [NAME] owned the vehicle. Whilst the registration number of the vehicle matched the initials of [NAME], that was insufficient in the circumstances. It is not surprising that the TC determined

UA-2023-000014-T [NAME] 3 that [NAME] had not satisfied him on the balance of probabilities that she was the owner of the vehicle and refused her application. [NAME] appealed.

4. The hearing took place on 23rd May 2023. [NAME] attended and represented herself and she was accompanied by [NAME]. [NAME] was given an opportunity to address the Tribunal, we were more concerned with whether all notices had been correctly served under Regulation 9 of the 2001 Regulations and in particular, whether the correct chief officer of police had been served as required under Regulation 9(1)(b)(iii) of the 2001 Regulations, the notice in the bundle being addressed to the Chief Constable of Derbyshire. Moreover, it did not appear that the Association of British Insurers had been notified as required under 9(1)(b)(iv) of the 2001 Regulations. As Regulation 9(1) is in mandatory terms “an authorised person shall .. serve a copy of the notice on - ..” we gave Mr [NAME] an opportunity to take instructions. He was then able to confirm that the Association of British Insurers had been notified but that the notice under Regulation 9(1)(b)(iii) had been served on the wrong Chief Constable and that as a result, the appeal must be allowed. We agreed.

5. That does not mean that the vehicle will be returned to [NAME] as she has not established on the balance of probabilities that she is the owner. She will have to do rather more than she has to date in order to show that the vehicle should be returned to her. Moreover, if she is successful in having the vehicle returned to her whether by the DVSA or by the person who is able to establish ownership, she now has a black mark on her regulatory history for: driving without a tachograph; driving with an unrestrained third person in the cab; driving without a driver CPC. If she intends to apply for an operator’s licence, she may have to persuade another TC that she was on a private journey rather than carrying goods for hire or reward and give explanations for the above and demonstrate that she had insured the vehicle in addition to the basic requirements set out in s.13 of the Goods Vehicles (Licensing of Operators) Act 1995.

6. The appeal is allowed.

Her Honour Judge Beech

Judge of the Upper Tribunal

30th May 2023