Wayne Coulton, Re

This appeal is ALLOWED. The decision of the Traffic Commissioner, taken on 24 June 2024, to revoke operator’s licence PC0004918 was made in mistake of fact. The revocation decision is set aside. No further order is made; the effect of our decision is that the Appellant remains the holder of an extant operator’s licence. Subject matter: revocation; material change of circumstances; stays of Traffic Commissioner decisions Case law referred to : Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 ; Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transpor t [2010] EWCA Civ 695 . REASONS FOR DECISION Introduction

1. In these reasons: - “operator” means the Appellant; - “OTC” means the Office of the Traffic Commissioner; - “ PPVA 1981 ” means the Public Passenger Vehicles Act 1981

2. We informed the operator at the conclusion of the hearing of this appeal that the appeal was allowed. We now give our reasons for allowing the appeal. Factual background

3. On 22 March 2024, the OTC wrote to the operator requesting that it confirm the correctness of information held about the operation. The OTC’s letter, which was headed “LICENCE CHECKLIST”: (a) identified the licence holder as Wayne Maurice Coulton and that the operator had two trading names “Red Rose Travel” and “Transpares Motors”; (b) gave the operator’s correspondence address as “155 Heysham Road” and left blank the section “address of establishment (if different)”; (c) gave the operating centre address as “Transpares Motors, 155 Heysham Road”.

4. We understand that this was a pre-licence renewal communication (the licence was said to be due for renewal on 30 April 2024). The computer-generated representation of the operator’s response to the checklist: (a) stated “Confirmed. Removed operating centres” although the supposedly new operating centre had the same address as the operating centre described in the licence checklist, namely “Transpares Motor, 155 Heysham Road”; (b) stated “Confirmed. Authorisation. – Total number of vehicles has decreased from 4 to 2”; (c) contained no financial information although the licence checklist had asked for specified financial information. The response document did not state ‘not supplied’, or words to that effect. It was silent regarding the operator’s response, if any, to the checklist’s request for financial information.

5. An OTC official construed the operator’s response to the licence checklist as an application to vary the operator’s licence. On 8 April 2024, this official emailed the operator “with regards to a variation you have submitted dated 2 April 2024…to reduce the total authorisation to 2 vehicles, change the nominated operating centre to 155 Heysham Road and to change the trading name”. The email went on to: (a) require “photo evidence of the new site, as it appears from our checks the address is unable to park PSV vehicles”; (b) require “financial evidence” for January, February and March 2024; (c) state as follows: “…the new trading name is a limited company, Transpares Motor Parts Ltd. You are unable to use a trading name as a separate limited company. The standard checks on this company shows you are the sole director, and therefore it must be established whether this company is the user of the PSV operator licence. It is also noted the new OC address is the address for the limited company”; (d) ended with the following words: “Please provide a response no later than 22 April 2024 with the financial evidence, new operating centre evidence and confirmation on the limited company”.

6. At this stage, we make the following observations about OTC’s email of 8 April 2024: (a) it is unclear why OTC construed the Appellant’s request to vary his operator’s licence to authorise two vehicles, rather than four, as including a request to change the nominated operating centre. The operating centre address provided by the operator was the same as that in the licence checklist; (b) it is unclear why OTC construed the variation application as including an application to “change the trading name” to “Transpares Motor Parts Ltd”. No entity of that name was mentioned in the operator’s response to the licence checklist and the trading name that was mentioned – Transpares Motor – was already specified as a trading name in the OTC licence checklist. (c) the email said nothing about the type of financial evidence required; (d) the email set out a number of assertions about the legal status of the ‘new trading name’ and that ‘it must be established whether this company is the user of the PSV operator licence’. The Appellant was then asked to provide ‘confirmation on the limited company’ but it is difficult, in our view, to ascertain with any certainty was sort of confirmation was expected.

7. On 9 April 2024, a different OTC official wrote to the operator, again in response to the operator’s response to the licence checklist. This official might have been aware that, on the previous day, another official had written to the operator seeking further information, but that is not apparent from the terms of the letter of 9 April 2024. The letter was written on formal OTC headed paper and informed the Appellant that certain supporting documentation had to be supplied before a variation application could be put before a Traffic Commissioner: (a) “please provide a detailed explanation on who the PSV licence has been operating under, along with evidence such as tax returns etc. showing the Sole trader has been submitting tax returns under their name”; (b) financial evidence was required “in the name of the entity that holds the licence” showing ready access to a sum of £12,500. Detailed information was given about the acceptable format of financial evidence; (c) a number of specified documents were required in order to address concerns that “the proposed operating centre does not appear to have sufficient parking space to park 2 PSVs”.

8. OTC’s letter of 9 April 2024 also informed the operator that “if your site is not suitable, you may instead wish to consider nominating a new operating centre”

9. On 2 May 2024, OTC sent two letters to the operator. One letter informed him that ‘additional documentation’ remained outstanding and, if the variation application remained incomplete at 16 May 2024, “it will be refused”. The outstanding information was that requested in the letter of 9 April 2024 (the email of 8 April 2024 was not mentioned). The second letter of 2 May 2024 read as follows: “It appears that a change of entity has occurred in respect of the licence holder because it appears you have been trading in the name of a limited company for some years - TRANSPARES MOTOR PARTS LTD 09629477. An operator’s licence is not transferable and any change of entity necessitates a new licence application. You can apply for a new operator licence at www.gov.uk/apply-vehicleoperator-licence by no later than 16/05/2024. I must advise you that if a change of entity has occurred, continued operations carried out under the existing licence are unlawful from the date that the change of entity took effect and this licence must be surrendered, together with the vehicle identity disc(s). Similarly, the new entity cannot lawfully commence operating until it has applied for, and been granted, authority to do so by the Traffic Commissioner under cover of a new licence. You are also advised that registered services operated under your licence should have ceased from the date that the change of entity took effect. If the new entity succeeds in obtaining a licence, it can at that point apply to operate new registered services.”

10. On 4 June 2024, OTC informed the operator in writing that the variation application had been refused: “A traffic commissioner is not satisfied that you meet the requirement to have an effective and stable establishment as set out in Section 14 ZA(2)(a) of [the Public Passenger Vehicles Act 1981 ]. This is because the nominated operating centre is unsuitable as a PSV operating centre as it seems to require a reversing manoeuvre across a pavement next to a pedestrian crossing.”

11. On 5 June 2024, OTC informed the operator in writing that a Traffic Commissioner proposed to revoke its operator’s licence under section 17(2) of PPVA 1981 . The proposed ground for revocation was that in section 17(3) (e) (material change in circumstances since licence was granted). The changes in circumstances were said to be “there has been a change of entity and that evidence has come to light that the stated operating centre is unsuitable for public service vehicles”. The operator was invited to make written representations and/or request a public inquiry by 19 June 2024.

12. On 6 June 2024, the OTC informed the operator for a second time that a Traffic Commissioner had refused the application to vary its licence. The decision letter informed the operator that this was because it had failed to supply requested information about the suitability of the nominated operating centre. The letter went on: “A traffic commissioner is not satisfied that you meet the requirement to have an effective and stable establishment as set out in Section 14 ZA(2)(a) of the above Act. This is because the nominated operating centre is unsuitable as a PSV operating centre as it seems to require a reversing manoeuvre across a pavement next to a pedestrian crossing. As outlined in our previous letter, a traffic commissioner has invoked Regulation 6 of the Public Service Vehicles (Operators’ Licences) Regulations 1995. As you have not supplied the required evidence, a traffic commissioner has determined that your application has little prospect of succeeding. Therefore, is not offering you the chance to request a public inquiry to consider the application.”

13. There is no trace within the OTC case file provided to the Upper Tribunal of a ‘previous letter’ outlining the invocation (or proposed invocation) of regulation 6 of the 1995 Regulations.

14. On 24 June 2024, the Traffic Commissioner revoked the Appellant’s PSV operator’s licence. The Commissioner’s decision letter recited a number of statutory grounds for revocation: - section 17(1) (a) of PPVA Act (licence-holder no longer of good repute); - section 17(1) (a) (licence-holder no longer satisfies requirement of appropriate financial standing); - section 17(1) (a) (licence-holder no longer professionally competent); - section 17(3) (e) (material change in circumstances relevant to the grant of the licence).

15. Despite four grounds for revocation having been recited in the revocation decision letter, the narrative explanation referred only to inadequate parking arrangements, in the following terms: “The traffic commissioner has deemed the proposed new operating centre inadequate as the vehicles are required to reverse across the pavement and there does not appear to be adequate space to conduct walkaround checks. The traffic commissioner therefore states that should you wish to apply for a new operator licence, a new operating centre will need to be established.”

16. The revocation decision letter contained no explanation as to why the operator had lost his good repute, no longer had financial standing, and was no longer professionally competent. The explanation given appeared to relate to the material change in circumstances ground for revocation. However, it did not explain why an operating centre that had always been specified on the operator’s licence was now considered to be a ‘proposed new operating centre’. Stay application

17. The operator applied to the Traffic Commissioner for a ‘stay’ of the decision revoking his PSV operator’s licence (i.e. suspension of revocation pending determination of the operator’s appeal to the Upper Tribunal). The application was refused, and the operator renewed the stay application before the Upper Tribunal. The Upper Tribunal granted a stay, and we consider it is worth setting out here part of the judge’s reasons for granting a stay: “The Commissioner’s reasons for refusing to grant a stay

8. The Commissioner gave the following reasons for refusing to stay the licence revocation decision pending determination of the Appellant’s appeal to the Upper Tribunal: “It is natural that a Traffic Commissioner will consider the likelihood of success of an appeal to be low, otherwise why would the decision have been made in the first place. It follows that my primary concern when considering a Stay is road safety. This is a standard licence. EU Regulation 1071/2009, as adopted, requires an operating centre that is "technically suitable". The centre associated with the present licence remains, in my firm view, dangerous. I will not grant a Stay where such a decision signals my operating approval to a vehicle being driven entirely blind across a public footpath. Whilst the appeal appears to me entirely without merit given the operator's failure to supply information when requested, my refusal is based on the safety risk alone. The application for a Stay is refused.”

9. In the light of the guidance in the Upper Tribunal’s decision in Ptarmigan T/2009/513 , I shall first consider the Traffic Commissioner’s reasons for refusing the Appellants’ stay application.

10. I am not satisfied that the Appellant’s stay application was adequately dealt with. The Commissioner’s reasons state that ‘it is natural that a Traffic Commissioner would consider the likelihood of success of an appeal to be low, otherwise why would the decision have been made in the first place’. This approach fails properly to consider the merits of an application for a stay. Evidently, grounds of appeal against a decision were not before the Commissioner when the licensing decision was taken. This apparent reluctance to countenance any flaw in a Commissioner’s reasoning is improper. For the stay process to operate as Parliament intended, a Traffic Commissioner must be capable of objectively reflecting on his or her reasoning.

11. I note the Commissioner’s road safety concerns. However, it seems to me doubtful that this operator did seek authority to operate from a different operating centre. All the correspondence provided to the Upper Tribunal, including that predating the refusal to grant a variation, describes the same operating centre at 155 Heysham Road. If the operator has always operated from 155 Heysham Road, as seems probable, that means a Commissioner must, at some point, have considered it suitable. In the absence of an explanation as to why the operating centre is only now considered unsafe, the Commissioner’s road safety concerns carry less weight. Analysis of prospects of success

12. In my judgment, while the Appellant’s grounds of appeal are briefly expressed, the appeal’s prospects of success are not low. This operator finds himself adjudged to have lost his good repute when none of the OTC correspondence that I have seen warned him that was under consideration. The Commissioner found that the operator lacked financial standing but gave no further explanation. I also think there is merit in the Appellant’s argument that there was not, in fact, any [ material change of circumstances]. Reasons for granting a stay

13. I grant the Appellant’s application for a stay on the coming into effect of the decision revoking his licence. In combination, this appeal’s prospects of success and my doubts as to the propriety of the Commissioner’s reasoning when refusing to grant a stay persuade me that this operator should not be required to cease operating pending determination of his appeal to the Upper Tribunal.” Legislative framework

18. Section 14 ZA of PPVA 1981 sets out requirements for standard PSV operator’s licences. The “first requirement”, in section 14 ZA(2), requires the operator / applicant to: (a) have an effective and stable establishment in Great Britain; (b) be of good repute; (c) have appropriate financial standing; and (d) be professionally competent.

19. Section 14 ZC(1) of PPVA 1981 sets out requirements for both standard and restricted licences, including: “(b) that there will be adequate arrangements for securing compliance with the requirements of the law relating to the driving and operation of [vehicles under the licence].”

20. Section 16 of PPVA 1981 provides for a Traffic Commissioner to attach certain conditions to a PSV operator’s licence both upon granting an application for a licence and subsequently.

21. Section 17(1) (a) of PPVA 1981 requires a Traffic Commissioner to revoke a standard PSV operator’s licence if the licence holder no longer satisfies the requirements of section 14 ZA(2) (see paragraph 17 above).

22. Section 17(2) of PPVA 1981 permits a Traffic Commissioner to revoke a PSV operator’s licence on any of the grounds specified in section 17(3) , which include “that there has been since the licence was granted or varied a material change in any of the circumstances of the holder of the licence which were relevant to the grant or variation of his licence” ( section 17(3) (e)).

23. A Traffic Commissioner may not take action under section 17(1) or (2) of PPVA 1981 (e.g. revoke a PSV operator’s licence) without first holding an inquiry if the licence holder requests an inquiry ( section 17(4) ). Additionally, regulation 9(1) of the Public Service Vehicles (Operators’ Licences) Regulations 1995 (“1995 Regulations”) provides that, before any powers under section 17(1) or (2) are exercised, the Traffic Commissioner shall give notice to the licence holder. The required contents of such a notice, set out in regulation 9(2), include: (a) that action under section 17(1) or (2) is under consideration, and the “grounds on which that consideration is based”; (b) a statement that, within 14 days of the notice, the licence-holder may make written representations “with respect to the action…being considered”; (c) a statement that it is proposed to hold an inquiry or an inquiry is not proposed unless the licence holder, within 14 days of the notice, makes a written request for an inquiry.

24. A licence holder may appeal to the Upper Tribunal against a Traffic Commissioner’s decision to revoke the licence, and also against a decision to refuse an application for variation of a condition attached to the licence ( section 50(4) of PPVA 1981 ). Where a Commissioner makes certain decisions, including a direction revoking a PSV operator’s licence, the Commissioner may, on request, direct that the decision shall not have effect until expiry of the period for appealing to the Upper Tribunal and, if an appeal is made, until it is disposed of ( section 50(6) ). Such a direction is conventionally referred to as a stay. If a Commissioner refuses to grant a stay, the licence holder may apply to the Upper Tribunal for a stay ( section 50(8) ). Grounds of appeal

25. The Appellant’s notice of appeal set out his case as follows: “I am of good repute because I am professionally qualified in transport manager CPC for PCV and HGV. I have operated for nearly 40 years. There has been no changes and no variations. I was going to change it into my Limited company name but after speaking to my accountant this is staying solely in my name. I have a separate bank account as a sole trader, a CPC and public service vehicle insurance in the sole trader name. The school contract that I do is in my name only. The sole trader bank account has sufficient funds.”

26. At the hearing of this appeal, the operator informed us that he had partly removed a wall at the entrance to his operating centre, with a view to improving driver visibility. Analysis

27. It is difficult to know where to begin our analysis because the process by which a Traffic Commissioner revoked the operator’s licence, as well as the revocation decision itself, was full of mistakes. But we shall start with the findings described in the Commissioner’s decision letter.

28. It seems to us that the principal reason why the Traffic Commissioner revoked the operator’s licence was the Commissioner’s determination that the ‘new operating centre’ was unsuitable. That entailed a finding of fact that there was a new operating centre and was, by reference to the statutory grounds for revocation, a determination that section 17(3) (e) of PPVA 1981 was made out, namely that “there has been since the licence was granted…a material change in any of the circumstances of the holder of the licence which were relevant to the grant…of his licence”. In making that determination, the Commissioner clearly made a mistake of fact. The operator’s response to OTC’s licence checklist identified the operating centre as ‘155 Heysham Road’. That must have been the same operating centre as that already specified in OTC’s records (it was the operating centre referred to in OTC’s licence checklist). There was no evidence that the operator had a new operating centre.

29. We remind ourselves of established authorities about the nature of the Upper Tribunal’s factual jurisdiction on an appeal against a decision of a Traffic Commissioner. We may not interfere with a Commissioner’s finding of fact unless we are persuaded “ not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one” ( Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 , [2004] INLR 417, at paragraph 44; applied to appeals against decisions of a Traffic Commissioner in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transpor t [2010] EWCA Civ 695 , at paragraphs 38 and 39).

30. We are satisfied that, in this case, there are objective grounds upon which we ought to conclude that a different view of the facts is the right one. The Traffic Commissioner’s revocation decision was based on a finding of fact that the operator now operated from some place other than 155 Heysham Road. At the date on which OTC sent the licence checklist to the operator, its specified operating centre was 155 Heysham Road. In responding to the checklist enquiries, the operator described its operating centre as 155 Heysham Road. The evidence admitted of only one conclusion, namely that the operating centre remained 155 Heysham Road. The Commissioner mistakenly found that the operator was now operating from some place other 155 Heysham Road. The right finding of fact would have been that the operator continued to operate from 155 Heysham Road. That is the finding of fact that the Commissioner ought to have made; it was the only tenable finding of fact on the available evidence. The Commissioner’ revocation decision was based on a material mistake of fact, and we set it aside.

31. It is not strictly necessary for us to address the other aspects of the Traffic Commissioner’s decision making. However, it seems to us that so many mistakes, both administrative and legal in nature, were made in this case that we ought to draw attention to them, in the hope that this will reduce the likelihood of recurrence in other cases: (1) it is possible that the operator may have, perhaps inadvertently, responded to the licence checklist in a way that generated an apparent electronic application to vary the licence by specifying a new operating centre. But the reality was that the operator continued to operate from 155 Heysham Road and that could not be altered by some mistake made (we do not know by whom) in the way in which the operator’s response to the licence checklist was presented electronically; (2) the first OTC official who dealt with the operator’s response to the licence checklist interpreted it as including a request to ‘change the trading name’. The trading name specified in the licence checklist was “Transpares Motors”. The operator’s response specified Transpares Motor (i.e. motor in the singular). It was surely obvious that this was a simple typographical error but, if OTC had doubts about that, why not simply ask the operator for clarification?; (3) that first OTC official decided that the licence checklist response stated that the trading name was “Transpares Motor Parts Ltd”, but that was not what was written in the response, which stated “Transpare Motor”; (4) the day after the first OTC official replied by email to the operator’s response to the licence checklist, a different OTC official sent a separate reply. Both required information to be provided by 22 April 2024 but the information required differed. We are sure that OTC, like the rest of the public sector, is not free of resource constraints so do not understand why there was this dual reply to the operator’s licence checklist response. The same observation applies to OTC sending the operator two notifications that the variation application had been refused (on 4 and 6 June 2024). The operator was also entitled to expect that OTC would exercise its regulatory functions in a way that did not impose unnecessary burdens. Making different requests for information about the same regulatory issue imposed an unnecessary burden; (5) OTC’s second notification that the operator’s variation application had been refused stated, “as outlined in our previous letter, a traffic commissioner has invoked Regulation 6 of the Public Service Vehicles (Operators’ Licences) Regulations 1995…a traffic commissioner has determined that your application has little prospect of succeeding. Therefore, is not offering you the chance to request a public inquiry to consider the application”. There is no ‘previous letter’ within the OTC case file outlining that a Commissioner had decided that the operator would not be entitled to request a public inquiry. If such a letter exists, OTC were required to supply it to the Upper Tribunal under the Tribunal Procedure (Upper Tribunal) Rules 2008. On an appeal against a decision of a Traffic Commissioner, Schedule 1(3)(b) to the 2008 Rules requires the “decision maker” to send to the Upper Tribunal “all documents produced to the decision maker in connection with the decision”. Either the ‘previous letter’ did not exist, or OTC failed to comply with their duties under the 2008 Rules; (6) the PTR (proposal to revoke) letter of 5 June 2024 identified, as the proposed statutory ground for revocation of the operator’s licence, a material change in the circumstances of the licence holder which were relevant to the grant of the licence. There was no hint that the Traffic Commissioner proposed to revoke on the grounds that the licence holder was no longer of good repute, no longer had appropriate financial standing, or was no longer professionally competent. Assuming that these grounds really were contemplated at the date of the PTR letter, the terms of the letter clearly contravened the requirement in regulation 9(1) of the 1995 Regulations for a PTR letter to state the grounds on which licence revocation is under consideration; (7) the revocation decision letter gave no reasons for finding that the operator was no longer of good repute, lacked financial standing and was no longer professionally competent. It should surely be obvious that, for any operator, a finding that it has lost its good repute and/or its professional competence is matter of some concern which calls for explanation. We have set aside the revocation decision and so the findings that the operator was no longer of good repute or professionally competent, and lacked appropriate financial standing, must be treated as if they were never made. It may also be of some comfort to Mr Coulton that our analysis of the evidence has not caused us to have any concerns about his good repute or professional competence (we do not have any evidence on which to express a view about the operator’s finances); (8) Parliament has conferred on the Traffic Commissioners the power to grant a stay (suspend the effect of a decision) pending determination of an appeal to the Upper Tribunal. It ought to go without saying that, in exercising this power, Traffic Commissioners must accept that, like all of us, they sometimes make mistakes. However, the catalogue of errors visited on this operator persisted into the Commissioner’s consideration of his request for a stay. The Commissioner did not properly engage with the merits of the operator’s appeal to the Upper Tribunal, merely stating, “it is natural that a Traffic Commissioner will consider the likelihood of success of an appeal to be low, otherwise why would the decision have been made in the first place”. Quite apart from the fact that the grounds of appeal to the Upper Tribunal were (obviously) not before the Commissioner when he decided to revoke the licence, this unwillingness to countenance that mistakes may be made nullifies Parliament’s purpose in permitting a Commissioner to suspend a revocation decision pending appeal. If that stance were replicated across all Traffic Commissioners (which we know is not the case), requesting a stay from a Commissioner would be a largely pointless exercise (its only value being to activate the Upper Tribunal’s power to grant a stay once it has been refused by a Traffic Commissioner). Conclusion

32. This appeal succeeds. The Traffic Commissioner’s decision to revoke the operator’s licence is set aside. This effectively revives the operator’s licence. We see no need to make any further order. Whether or not enforcement action is to be instituted against this operator is a matter for a Traffic Commissioner to decide. The apparent refusal to grant a request to vary the operator’s licence was a nullity because no substantive variation request was made. Authorised for issue by Upper Tribunal Judge Mitchell on 28 December 2025. Given under section 50 of the Public Passenger Vehicles Act 1981 .