Decision

Impounding: Written decision regarding an impounding by the Traffic Commissioner for the North Western Traffic Area for Irene Butcher

Published 2 March 2023

0.1 In the North West of England Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Impounding Hearing: In respect of the application by IRENE BUTCHER (“the applicant”) for the return of VEHICLE REGISTRATION NUMBER: MX57 UGD

This decision concerns a minibus vehicle, registration number MX57 UGD (“the vehicle”) which was impounded by the DVSA (“the respondent) on 20 January 2023.

Mrs Irene Butcher (“the applicant”) asserts ownership of the vehicle and has applied for its return.

2. The Hearing

Following the receipt of the application, I made directions that the respondent was to serve its evidence by 9 February 2023 and that the applicant was to serve documentation proving her ownership and detailing in writing what inquiries she made prior to the alleged use about the requirement for an operator’s licence or other legal requirements for that use.

The respondent complied with the directions, but nothing further was heard from the applicant.

The hearing went ahead this morning. Traffic Enforcement Manager (TEM) Colin Rowlands attended on behalf of the respondent. The applicant was not represented.

I am satisfied that the applicant has been given a proper opportunity to attend the hearing and has failed to do so today without good reason. I consider it is appropriate to proceed in the applicant’s absence.

I draw attention to the guidance contained in the Senior Traffic Commissioner’s Statutory Guidance Document No.7 on Impounding (“Statutory Document 7”):

“Any claimant who fails to attend an impounding hearing runs a significant risk that the application will fail because there is no evidence to prove the ground upon which return is sought and/or because the applicant is unable to answer any point raised during the hearing”.

3. The statutory background

The Public Passenger Vehicles Act 1981 (“the Act”) and the Public Service Vehicles (Enforcement Powers) Regulations 2009 (“the Regulations”) make provision for vehicles operated by a person or an entity without the authority of an operator’s licence to be detained by an authorised person.

The owner of such a detained vehicle is entitled to apply to DVSA and subsequently to the Traffic Commissioner for the release and return of the vehicle.

Application may be made on four grounds:

• that, at the time the vehicle was detained, the person using the vehicle held a valid licence (whether or not authorising the use of the vehicle).

• that, at the time the vehicle was detained, the vehicle was not being, and had not been, used in contravention of section 12(1) of the 1981 Act.

• that, although at the time the vehicle was detained it was being, or had been used in contravention of section 12(1) of the 1981 Act, the owner did not know that it was being, or had been, so used.

• that, although knowing at the time the vehicle was detained that it was being,

or had been, used in contravention of section 12(1) of the 1981 Act, the owner:

• had taken steps with a view to preventing that use; and

• has taken steps with a view to preventing any further such use.

In proceedings of this type that are adversarial in nature it is for:

• An applicant to prove on the balance of probabilities that it owned the detained vehicle at the material time.

• DVSA to prove their right to detain the vehicle in question in accordance with their policy.

• An applicant to prove on the balance of probabilities that one of the grounds for its return applies.

4. The circumstances

The vehicle in question is an Iveco Daily 16 seat minibus with the registration number MX57 FGD and taxed at tax class 34 BUS until 19 June 2023.

The vehicle was impounded by DVSA examiners at around 14:00 hours on Friday 20 January 2023 at the M65 Cuerden check site. The vehicle had initially been stopped by the police who then directed it to the attention of the DVSA at the check site.

The circumstances of the impounding are as follows:

• The applicant, Mrs Butcher, has been the registered keeper of the vehicle since 14 August 2018.

• Mrs Butcher does not hold a valid PSV operator’s licence.

• The vehicle bears the name “Gregory Tours Ltd”.

• On 16 November 2021, DVSA sent Mrs Butcher a letter warning her that it had information she had been using vehicles in connection with a business (“Gregory Tours”) that required a valid PSV operator’s licence. The letter warned of the consequences continuing to use a vehicle without authority of a licence including impounding.

• Mrs Butcher responded to the DVSA that she intended to apply for an operator’s licence. She subsequently started an online application, but it was not completed, the fee was not paid and the application never submitted.

• The DVSA provided evidence of reviews on Facebook for “Gregory Tours Ltd” from July 2022 for providing airport transfer services including one that referred to 9 passengers.

• Evidence was also provided of an advert in a local paper dated 2 November 2022 for Gregory Tours referring to the availability of a 16-seater minibus for “private hire, airport runs, golf trips, nights out”.

• ANPR evidence showed 244 sightings of the vehicle between 26 October 2022 and the date of the impounding on 20 October 2023. The journeys included several to Manchester airport.

• When the vehicle was stopped on 20 January 2023 it was being driven by Howard John Butcher who gave the same home address as for the applicant.

• The vehicle was carrying 10 passengers on a pre-booked journey from Preston to Blackpool. £120 had been paid to Mr Butcher by the passengers but he returned the payment to the passengers after being stopped.

• Mr Butcher was interviewed under caution. He said he ran Gregory Tours as a sole trader. Mr Butcher said no one else was involved in running the business.

• Mr Butcher admitted he was aware that the at the vehicle needed an operator’s licence to conduct a hire and reward journey such as that at the time of the encounter. Mr Butcher claimed his wife had applied for an operator’s licence before Christmas, but they had not heard back.

• There is no valid PSV vehicle operator’s licence held by the applicant Irene Butcher nor any entity named Gregory Tours. There is no record on the Companies House register of a company named Gregory Tours Ltd.

Traffic Examiner Yeadon impounded the vehicle on behalf of the DVSA as it appeared to him that it had been used in contravention of Section 12 of the Act.

Section 12(1) of the 1981 Act states:

A public service vehicle shall not be used on a road for carrying passengers for hire or reward except under a PSV operator’s licence granted in accordance with the following provisions of this Part of this Act.”

5. Further relevant background

In reaching a determination, I have considered the following:

• The original brief for the hearing paginated from pages 1-31

• Evidence of TEM Rowlands today.

• The Senior Traffic Commissioner’s Statutory Guidance Document No.7 on Impounding.

6. The application for return of the vehicle

A claim for the return of the vehicle was made by Mrs Irene Butcher on 29 January 2023.

Mrs Butcher made the claim on Ground (c). The ground claimed stated:

“That at the time the vehicle was detained:

Ground: (c) I did not know it was being, and had been, used in contravention of

section 12(1) of the 1981 Act.”

The following reason was set out in the application form in support of the ground claimed by the applicant:

“I am very sorry but as it was only used as a very part time I didn’t know I needed an operators’ licence and if the minibus is returned to me I would be selling it as I don’t have the money to apply for an operators licence.” (sic)

The applicant indicated that she did not wish a hearing to be held but I directed that one should be arranged so I could hear all the evidence before reaching a determination.

7. Evidence and Findings

7.1 Ownership of the vehicle

I have not seen any conclusive evidence to support the applicant’s assertion in her application for the return of the vehicle that she is the owner.

Other than that assertion, the only other evidence I have available is the fact that the applicant is the registered keeper. However, as stated in Statutory Document 7 citing the decision of the Transport Tribunal in 2005/259/ RJ Evans, the identity of the registered keeper is not conclusive evidence that the applicant is the owner.

In reaching this decision, I have also had regard to the fact that Howard Butcher claimed to the DVSA officers that he was the person solely responsible for running the minibus business and this raises at least the possibility that he may be the rightful owner of the vehicle.

As guided by Statutory Document 7 I have considered the test is of whether the appellant had produced sufficient evidence to satisfy the traffic commissioner upon the balance of probabilities that it is the owner. As I have not been presented any such evidence, I find the applicant has failed to prove ownership.

I take account of the guidance offered by the Upper Tribunal in Clayton Car Sales Limited T/2012/53 that the general rule is that ownership is the sensible starting point in any impounding hearing or decision because it is only the owner who can apply to a traffic commissioner for the return of an impounded vehicle.

I determine that the claim by Mrs Butcher must fail as she has not passed that starting point by demonstrating ownership of the vehicle.

I am, however, mindful of the absence of the applicant today and the possibility that at some future date she may attempt to produce evidence of ownership. For that reason, I set out below my findings in relation to the other aspects to be considered in such a claim.

7.2 DVSA’s right to detain the vehicle.

I heard evidence from TEM Rowlands that supported the written statements of his colleagues and the other information contained in the brief.

I was satisfied on the balance of probabilities that DVSA had reason to believe that the detained vehicle was being or had been used, on a road, in contravention of section 12(1) of the 1981 Act.

7.3 The ground claimed for the return of the vehicle.

I have detailed above the applicant’s representations in the application form that she was unaware that an operator’s licence was needed for the use of the vehicle.

The applicant has not provided any further evidence or information to support that assertion.

In any event, the evidence presented by the DVSA clearly contradicts that assertion.

I am satisfied that Mrs Butcher had been unequivocally warned by the DVSA in November 2021 that an operator’s licence was required to use the vehicle to carry passengers for hire and reward. I am further satisfied that she received and understood that warning as she subsequently started an online licence application.

I find it more likely than not, that the application was not pursued as Mrs Butcher realised that she could not meet the requirement of financial standing (as indicated in her application for the return of the vehicle).

Despite the reference to “very part time use” in the application form, I also note the evidence I have seen that the vehicle had been used on a relatively regular basis from July 2022 onwards. In any event, there is nothing in the legislation to suggest that occasional use is exempted from the licensing requirement.

To successfully apply for the release and return of a vehicle under Ground (c), the burden is on the applicant to show that the vehicle had not been knowingly used in contravention of the Act.

Other than the assertion in the application form, the applicant has not provided me with any evidence to support that assertion. The applicant has not discharged the burden of proof and I find that the application for return of the vehicle falls on ground (c) as well.

I note the following guidance offered by Statutory Document 7:

“A traffic commissioner is entitled to have regard to the well-known principle that everyone is taken to know the law, so an applicant is taken to know that it is unlawful, under the Act, to operate without an operator’s licence, that operating a vehicle in contravention of the Act renders the vehicle liable to be impounded and that the grounds on which an impounded vehicle can be returned to its owner are limited to those set out in the Regulations. It is open to a traffic commissioner to conclude that knowledge of these matters would influence the decision of the honest and reasonable person as to whether or not to make inquiries.”

In this case, I find the evidence goes beyond that principle. Due to the warning issued by the DVSA and the incomplete attempt to apply for an operator’s licence, I find it is more likely than not that the applicant had actual knowledge that the use of the vehicle without an operator’s licence was contrary to section 12(1) of the Act. The applicant has not discharged the burden of proof and I find that the application for return of the vehicle falls on ground (c) as well.

Consequently, I find this application fails and direct that as soon as the period for lodging an appeal (1 month from today) has expired that DVSA may dispose of the vehicle in accordance with the regulations.

Gerallt Evans

Traffic Commissioner for the North West of England

23 February 2023