Upper Tribunal Upholds Traffic Commissioner's Decision on Vehicle Ownership

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UKUT 0283 (AAC) Appeal No. T/2018/25 IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER TRAFFIC COMMISSIONER APPEALS

IN AN APPEAL FROM THE DECISION OF Richard Turfitt, Traffic Commissioner for the East of England dated 9 April 2018

Before: Her Hon. Judge J Beech, Judge of the Upper Tribunal [NAME], Specialist Member of the Upper Tribunal [NAME], Specialist Member of the Upper Tribunal

Appellant:

[redacted]

In attendance: [NAME] assisted by [NAME] manager

Heard at: Field House, 15-25 Bream’s [ADDRESS], [POSTCODE] Date of hearing: 21 August 2018 Date of decision: 28 August 2018

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal be DISMISSED

SUBJECT MATTER:- Impounding. Whether the Appellant had established ownership and an entitlement to the return of the vehicle.

CASES REFERRED TO:- 2011/25 [NAME]; T/2011/60 [NAME] v [NAME] & the Secretary of State for [NAME]; T/2016/28 [NAME] v DVSA

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REASONS FOR DECISION

1. This is an appeal from the decision of the Traffic Commissioner for the East of England (“[NAME]”) made on 9 April 2018, concerning an impounded vehicle and an application for its return by the Appellant (“[NAME]”). [NAME] found that [NAME] had failed to satisfy him that at the time the vehicle was detained, he was the owner of the vehicle and had further failed to satisfy him that at the time the vehicle was detained, it was not being, and had not been, used in contravention of section 2 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”).

The Background

2. Vehicle [ID] is a 3 axle flat-bed DAF with a gross plated weight of 21 tonnes, in the livery of “[NAME]”, the name of [NAME]’s recovery business. The vehicle is fitted with a crane to assist in the recovery of vehicles.

3. On 20 March 2018, the vehicle was stopped on the A52 near Folkington, Lincolnshire. It was being driven by [NAME] who confirmed that the vehicle was carrying machinery which he had collected from Frithville, Boston to be delivered to Allutrade Recycling Centre in Oldbury, near Birmingham. It was noted during DVSA checks that [NAME] and [NAME] were the registered keepers of the vehicle at Victoria House, [ADDRESS], Boston. [NAME] explained that [NAME] no longer lived at that address and gave the Traffic Examiner an alternative address for him. The vehicle was then impounded with relevant documentation being read to [NAME] as he is dyslexic and has considerable difficulty with reading. The property notice signed by [NAME] to confirm that his personal property had been removed from the vehicle is annotated “I would like to have the crane back which is attached to vehicle”.

4. The application for return of the vehicle was completed by [NAME], solicitor of [NAME] who requested a hearing (contrary to [NAME]’s comments in his decision that no such request was made). The basis of the application was that at the time of the vehicle’s detention it was not being, and had not been, used in contravention of s.2 of the 1995 Act.

5. The hearing of the application took place on 18 April 2018. Traffic Examiner (“TE”) [NAME] attended on behalf of the DVSA. [NAME] was represented by [NAME] who provided a skeleton argument prior to the hearing which identified two separate aspects to the application. The first related to the crane, which, [NAME] contended, should be returned to [NAME] under regulation 16(2) of the Goods Vehicles (Enforcement Powers) Regulations 2001 as it fell within the definition of “contents”. This was a wholly unsustainable and misconceived submission bearing in mind the detailed evidence that [NAME] gave as to the vehicle adaptations that were required in order to fit the crane onto the vehicle (more detail below) and in view of the Upper Tribunal decision of 2007/75 [NAME] trading as [NAME] could be no doubt that the crane had become part of the vehicle following the adaptations undertaken by a specialist firm.

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6. The second aspect of the application was that whilst it was now accepted by [NAME] that the vehicle was in fact being used in breach of s.2 of the 1995 Act, it should nevertheless be returned on the grounds of proportionality. This too, was a wholly unsustainable submission bearing in mind the Upper Tribunal decisions on the point, namely, 2011/25 [NAME]; T/2011/60 [NAME] v [NAME] & the Secretary of State for [NAME] and T/2016/28 [NAME] v DVSA the last case being one in which his own firm acted for the Appellant.

7. At the hearing, [NAME] gave evidence and submitted documentation in support of his case that he was the lawful owner of the vehicle. He explained that he had purchased the vehicle in 2013 from [NAME] when at that stage, the vehicle was fitted with a box on the back and a white day cab and displayed the registration number [ID]. He produced a photograph of the vehicle in that state which he had taken. The Cosbys were specialist retailers and manufacturers of recovery vehicles. He agreed to pay the Cosbys £12,500 for the vehicle along with a crane which was to be fitted to the vehicle at a later date and it was further agreed that payment for the vehicle and the crane would only become due when the crane was fitted to the vehicle.

8. The Cosbys then permitted [NAME] to take the vehicle away and undertake some of the improvement and adaptation work on it himself as a cost saving measure. He removed the box from the rear of the vehicle along with the cab, replacing the latter with a sleeper cab liveried in the name of “[NAME]”. There was a delay in returning the vehicle to the Cosbys because money was short for [NAME] but he did so in about June 2014 and the crane was then fitted, a job which took approximately seven days. [NAME] described the work that had been required: the chassis had to be strengthened to take the weight of the crane; the diesel and AdBlue tanks had to be moved; stabilisers were fitted to the chassis and pipework which ran off the PTO pump had to be fitted to operate the crane.

9. The invoice which [NAME] produced from the Cosbys was dated 18 June 2014 and [NAME] explained that the difference in the date between his agreement to buy the vehicle and the invoice reflected the delay caused by him undertaking work of his own on the vehicle. The invoice itself is made out to [NAME], Victoria House, [ADDRESS], Boston, which is the address that the Office of the Traffic Commissioner has on record for [NAME] when he had previously held a restricted operator’s licence. The invoice is for a DAF LF 250 6 x 2 Chassis Cab with crane. The registration number of the vehicle was [ID]. [NAME] also produced a letter written by [NAME] and dated 17 April 2018 which states:

“With regards to the DAF truck [ID] we sold this truck to [NAME] as a box van. He removed the box body and sent it back to us for fitment of the crane sold to him at the same time as the truck”.

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10. [NAME] produced the V5 log book of the vehicle which is in the name of [NAME] and [NAME] with the same address as set out in paragraph 9 above. [NAME] did not ask [NAME] to explain why [NAME]’s name appeared on the log book and neither did [NAME]. [NAME] also relied upon an Experian Auto Check which confirmed the registration plate change of the vehicle to [ID].

11. At the conclusion of the evidence concerning ownership, [NAME] confirmed that she was content with the documentation going to ownership and [NAME] then ran through the documentation again. At the conclusion of his summary he states: “Alright. Well done.” There was no indication at all that [NAME] might have any concerns that [NAME] had not established that he was the owner of the vehicle.

12. As we have already indicated, it was inevitable that the application for return of the vehicle was going to fail and [NAME] confirmed the position in his written decision. In relation to ownership, [NAME] made the following findings:

a) The vehicle was shown to be registered to “[NAME] and [NAME]” and whilst [NAME] had informed the Traffic Examiner that [NAME] no longer lived as the address notified to the DVLA, [NAME] had not heard any evidence as to why [NAME]’s name appears on the V5; b) The correct test is whether [NAME] can produce sufficient evidence to satisfy [NAME] upon the balance of probabilities that he is the owner, not whether there is credible evidence that the vehicle is owned by anyone other than [NAME]. Enquiries at the time of the detention confirmed that the vehicle was registered to two people, including [NAME]; c) [NAME] found that the date on the invoice showing purchase of the vehicle and a crane to be confusing. [NAME] appeared to have anticipated the limited weight which could be attached to the invoice and produced the additional letter from [NAME]; d) [NAME]’s evidence at the hearing indicated that he had fitted a replacement cab himself but the invoice suggested that the Cosbys charged for that work; e) On the basis of the above, [NAME] had failed to satisfy [NAME] to the civil standard of proof that he was the legal owner of the vehicle.

The Appeal

13. At the hearing of his appeal, [NAME] attended and was assisted by [NAME]. She explained that [NAME] had now applied for an operator’s licence and that she was assisting him in that regard and was his proposed [NAME] manager. She impressed the Tribunal with the way that she had prepared for the appeal hearing and the grasp she had of the appeal bundle. [NAME] repeated the difficulties he had with reading.

14. [NAME]’s letter of appeal and the submissions made to the Tribunal can be summarised as follows: [NAME] had previously held a restricted operator’s licence which had been revoked as a result of his failure to respond to a “propose to revoke letter”. He had been unable to read the letter and had not

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asked for assistance in time. In any event, he had been told that he did not need an operator’s licence for recovery work. He had been foolish in accepting the load he was carrying on 20 March 2018 but it was during a quiet period in his recovery work. He accepted that he needed an operator’s licence to undertake such work.

15. He repeated the evidence he had given to [NAME] about how he came to acquire the vehicle and its adaptation. [NAME] is [NAME]’s eldest son and he is involved in “banger racing” as a hobby. As he wished to utilise the vehicle to [NAME] his vehicles to races, he contributed money towards the running of the vehicle and as a result, [NAME] decided that it was only right that he be included in the registered keepers’ details.

16. It was his partner who found the details of [NAME] who held themselves out as experts in [NAME] law and [NAME] was engaged for a fee of £1800 (which [NAME] had borrowed from his father). [NAME] was unhappy with his representation. First of all, he did not meet [NAME] until the morning of the hearing. Secondly, he was not advised as to the poor prospects of his application succeeding and that his money would have been better spent in paying the storage charges (which have continued to accumulate whilst this appeal has been on-going) and buying the vehicle back from the DVSA. Thirdly, [NAME] accepted that the crane was part of the vehicle and that was obvious and he further accepted that the use of the vehicle was in breach of s.2 of the 1995 Act on the day it was impounded. [NAME] just “babbled on about old cases” and it made [NAME] nervous and confused about the position he was in. Thirdly, by the date of the hearing, [NAME] had engaged [NAME] as proposed [NAME] manager and had applied for an operator’s licence. [NAME] had provided documentation to [NAME] demonstrating the steps he had taken in relation to the application but [NAME] failed to mention this to [NAME]. [NAME] had said that all that would happen was that [NAME] would be liable to a fine of £3,000 to £5,000 (which we take to be a reference to the storage charges as [NAME] does not have a power to fine) and wanted a fee of £7,000 for representing him on the appeal. [NAME] believed that his application should in fact have been under regulation 4(3)(d) of the 2001 Regulations:

“that, although knowing at the time the vehicle was detained it was being, or had been, used in contravention of section 2 of the 1995 Act, the owner – i) Had taken steps with a view to preventing that use; and ii) Has taken steps with a view to preventing any further such use.”

17. [NAME] was also concerned about [NAME]’s finding that [NAME] had failed to establish ownership of the vehicle. She could not understand the basis of that conclusion in view of the evidence before [NAME].

Discussion

18. We advised [NAME] at the outset of the hearing, that his appeal was bound to fail as he had accepted that the vehicle was being operated in breach of s.2 of the 1995 Act and that he knew that to be the case at the material time. We

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were able to come to that conclusion because [NAME] had told us that prior to accepting the load on 20 March 2018, he had in fact told the owners of the load, that he could not take it because he did not have an operator’s licence. Further, [NAME] did not have a discretion as to whether the vehicle could or should be returned to [NAME] irrespective of the breach. As for [NAME]’s wish to pursue the return of the vehicle before us on a different ground to that relied upon before [NAME], we informed him that we could only consider his appeal upon the basis of the application before [NAME]. In any event, [NAME] could not establish limb (i) of exemption (d).

19. We then turned to the issue of ownership. Having read the transcript and considered the documentation produced by [NAME] in order to establish ownership, we are (with the greatest of respect to [NAME]) mystified as to why he failed to find in [NAME]’s favour. Dealing first with the V5 log book, the full registration details are “[NAME] & [NAME]”. [NAME] is [NAME]’s trading name. [NAME]’s name appears on that document, that was not the subject of any questions from [NAME] or enquiries from [NAME]. Indeed, the impression given by [NAME] in stating “well done” at the end of his summary of the documentation, was that the documents satisfied him upon the issue of ownership. Whilst traffic commissioners can take a step back in impounding hearings which are adversarial in nature, particularly if the applicant is legally represented, it must have been clear in this case that [NAME]’s representation of [NAME] was lacking (as we regrettably find) and that if [NAME] had any continuing concerns arising from the registration of the vehicle, he should have said so. That at the very least would have ensured that [NAME] was given the explanation that [NAME] has now given the Tribunal and if that did not satisfy [NAME] could or should have been given an opportunity to obtain a statement from his son in support of his application within a specified period of time. We remind ourselves that the 2001 Regulations make clear that a person can satisfy an authorised person that they are the lawful owner of a vehicle irrespective of the identity of the registered keepers.

20. As for [NAME]’s confusion about the date of the invoice produced by [NAME], we are satisfied that the combination of the letter signed by [NAME] and the detailed evidence of [NAME] as to the time line for the purchase agreement, the adaptation work and the payment for the vehicle and crane should have addressed any confusion in [NAME]’s mind. [NAME]’s evidence was clear and sufficiently detailed and it was not suggested by [NAME] that his evidence or the documentation was either untruthful, incredible or in some other way, unreliable.

21. Turning then to [NAME]’s concerns about the evidence as to who fitted a replacement cab to the vehicle, [NAME] did not ask [NAME] questions about it. In any event, we do not interpret the invoice and the subsequent letter from [NAME] in the same way as [NAME]. We are satisfied that the letter makes it clear that it was [NAME] who removed “the box body” and it was they who fitted the crane.

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22. In the result, we are satisfied that [NAME] was plainly wrong in determining that [NAME] had failed to establish upon the civil standard, that he was the owner of the vehicle. That of course does not affect the overall result of this appeal because [NAME] was and is unable to argue that the any of the grounds for returning the vehicle apply in his case.

23. It follows that whilst we are satisfied that [NAME]’s approach to the issue of ownership was in error, his approach to the issue of whether the vehicle should be returned to [NAME] was plainly right and in the circumstances, the appeal is dismissed.

Her Honour Judge Beech 28 August 2018