On 12 December 2022, The Senior Traffic Commissioner published important proposed changes to the Statutory Guidance. The changes are currently out for consultation, and the consultation itself closes on 16 January 2023. Of significance are the proposals to amend Statutory Document No. 0, ‘Introduction to Operating Licensing’ and Statutory Document No. 4, which covers Operating Centres. The Senior Traffic Commissioner considers that vehicles should be authorised under an Operator’s Licence to comply with the core requirements of the regulatory regime, and the proposed amendments follow the Upper Tribunal’s decision in July 2022 in Connor Construction (South West) Ltd  UKUT 177 (AAC).
The Appellant in the case of Connor was routinely, and as a business practice, using more vehicles in the operation of its business than it was seemingly authorised to do under its O-Licence and was using the VOL system to swap vehicles on and off the licence so that, at any given time, no more than 9 (the number authorised to be used under the terms of the licence) were actually on the licence. The Appellant sought to justify this practice before the Traffic Commissioner by arguing, in effect, that whilst the term “use” as it appears in section 2 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) is not defined, “using” a vehicle within the meaning contemplated by section 2 simply means driving it on the road. So, if an operator has a commercial vehicle which is not being driven for commercial purposes, it is not being used within the scope of section 2 of the Act and does not need to be specified on the licence. In other words, the operator could have as large a fleet of vehicles as it wanted, so long as only 9 were being driven for commercial purposes at any given time and all were specified on the licence.
However, in its judgment, The Upper Tribunal found that a vehicle which is utilised as a commercial vehicle for the purposes of the business is being used in connection with any trade or business carried on by the operator, even if that vehicle is not actually being physically driven for such purposes at that specific point in time. The Upper Tribunal went on to reject the notion that the near continuous specifying and de-specifying of vehicles is an appropriate way for an operator to conduct its business and found that being in possession of a fleet of vehicles considerably in excess of the licence authorisation and then drawing down vehicles to use as and when required undermines at least two of the core requirements of the regulatory regime, namely those which relate to financial standing and operating centres. The Upper Tribunal concluded that an operator which conducts its business in such a way runs the risk of using on a public highway a vehicle not specified on the licence and/or using one beyond the specified interval of its periodic maintenance inspection. The Upper Tribunal reasoned that such practices create a high risk of error, in terms of inspection as well as legality and financial standing, with a consequential risk to public safety.
With the judgment in Connor in mind, it is important to note that this decision, and any subsequent amendments to the Senior Traffic Commissioner’s Statutory Guidance, may impact upon the frequency that an Operator can reasonably amend vehicles being moved off and back onto a licence, placing a greater emphasis on the need to proactively apply to vary licences, in order for more vehicles to be added ahead of the decision on their usage.
Mark Ruffell – Pump Court Chambers