How Far Will Licensing Change?
Page 48
Page 49
If you've noticed an error in this article please click here to report it so we can fix it.
Section 9 of the New Act Does Not Necessarily Repeal Enston Decision: it May Only Alter Emphasis on Proof by Objectors to Licence Applications
By R. Morton Mitchell,
B.L., D.P.A., S.S.C., Chief Executive Officer, Road Haulage Association AMENDMENTS to the grounds for granting and refusing licences under the Road and Rail Traffic Act, 1933, were obviously unexpected when the Transport Bill was first published. Many experts maintained that they should be deleted, or at least delayed. As time has passed, various attempts have been made to explain the reasons for the proposed amendments, and to justify changes which seemed to many operators to be likely to bring about a new approach to the licensing procedure.
. The main provisions in the Act are contained in Section 9. The more important effects are the change in the onus of proof, the introduction of charges for consideration by the Licensing Authority in dealing with applications, and the provision for revocation or suspension of a licence as a result of a false statement of intention or expectation by an applicant.
, Debates in Parliament did not establish clearly the intention of the amendment made by sub-section 1. This provides that Licensing Authorities " shall have regard to the interests of the public generally, including primarily those of persons requiring facilities for transport and secondarily those of persons providing facilities for transport." The phraseology of Section 6(2) of the 1933 Act was thought to place the interests of the public generally, and those of persons requiring and providing facilities for transport, much on the same plane.
Public Need More Important Whilst the Attorney-General endeavoured to deal with the matter on a legal basis, the Minister of Transport seemed to sum up the matter adequately when he said that the effect of the amendment would be " to put the public need for transport into a more important position than it was before."
This new provision does not seem to go much farther than a decision in one of the leading appeal cases (Hay's Wharf Cartage), in which it was held that because of the extreme national importance of the production of open-east coal, a Licence limited to carrying plant to and from open-cast coal sites should be granted, irrespective of objections proving availability of alternative transport. If sub-section I removes any doubt, it is merely by lessening the emphasis on need and allowing a proof at large by an applicant as to the interest of the public generally. In other words, the change, like others in this section, appears mainly to benefit those who require transport facilities.
Another part of the section is intended to encourage the use of railways or inland waterways.wherever possible. It requires that the LicensingAuthorities shall also have regard to the extent to which vehicles will
provide services under which goods can be carried partly by road and partly by railway or inland waterway, without the need for loading and unloading. In fact, the section goes on to say that where container bodies are used, such an arrangement shall not be treated as unloading or re-loading of goods.
Nowhere in the section is there any provision that adequate cranage facilities should be available in railway yards, at docksides, or at loading banks, nor does the subsection encourage the use of freight-handling equipment and pallets. It appears, however, that the intention is to create a freer movement of traffic between one form of transport and another. If there is no need for unloading and re-loading, but transfers are made in containers, the tendency will be for Licensing Authorities, in such circumstances, to grant licences reasonably freely. This will be in line with the expected expansion in the use of containers and the development of freight-handling equipment for suitable traffics.
Easton Ruling Repealed?
The most important parts of Section 9 are undoubtedly those dealing with the change of onus of proof, and with charges. When one considers how the principles of proof in connection with applications for licences have been built up, and the terms of the 1933 Act, it is not wise to jump to a hasty conclusion that the Transport Act, 1953, repeals the principles in the Easton case.
Every Licensing Authority in the country and the Transport Tribunal (formerly the Appeal Tribunal) have long recognized that in accordance with the decision in Enston, any applicant for a licence had to satisfy the Authority (1) that there were persons ready and willing to engage the applicant's services, and (2) that the work proposed to be carried out could not be done suitably by other hauliers. As Section 11(2) of the 1933 Act still stands, the question of availability remains important. Sub-section 2 makes it necessary for the Licensing Authority to consider objections which would rebut the principles laid down in Enston, especially as regards resultant transport facilities being in excess of requirements.
Abstraction of traffic will also still be a material factor in considering applications, and the principles followed in such cases as Dunnett, and Stephenson and Sagar, are likely to be relevant. in Dunnett, it was decided that proof of abstracted traffic established that facilities which formerly carried the goods were, in the absence of proof to the contrary, suitable to carry them now.
In Stephenson and Sagar the Appeal Tribunal allowed evidence to be called to show that the reason why traffic had been captured by the applicant, a newcomer to the industry, from the objectors, was that the traffic had been neglected by the objectors. Being satisfied by this evidence, the Tribunal granted a B licence.
Section 9 (3) (a) of the new Transport Act provides that where the Licensing Authority takes into consideration any objection, the onus of proof that there are grounds for objection shall lie upon the objector.
The primary test of this amendment arises when applications by newcomers are submitted without objections being lodged. In such cases, the Licensing Authority is not absolved from having regard to various matters laid down by statute. It would appear, therefore, that he must still follow the principles of Enston as regards persons willing to engage the applicant's services and alternative facilities not being available.
The question of interpretation arises when objections are lodged. In that case it is fair to assume that the Licensing Authority will expect the applicant to make a prima facie case to support his application. It will then be for the objector to submit more strongly, and with adequate proof, the facts as to suitable transport facilities already available, so that if the application were granted, these facilities would exceed requirements.
Precedent of Armstrong In the case of Armstrong it was held that the Authority, in exercising his discretion, did not of necessity have to have regard to the duty of the British Transport Commission (who were the objectors) under the Transport Act, 1947, to provide and secure the promotion of an integrated transport. system. It was also held in that case that where the Commission appeared as objectors to a newcomer's application, the Authority must not judge the suitability of the objectors' facilities by reference to the number of their vehicles alone, but rather on the basis of their availability and the service which they gave.
In the whole circumstances it appears that the direct statutory provision for a change in the onus of proof in the case of an application for a new licence, or for variation of an existing licence, • will merely alter the emphasis, and therefore justify Licensing Authorities in calling for greater proof by objectors than by applicants. It will not relieve any applicant from having to substantiate his case.
The provision that "charges made and to be made in respect of transport facilities can now be considered by the Authority in connection with applications, is entirely new. So far, Licensing Authorities have found great difficulty in taking charges into account. Indeed, in the case of Bouts-Tillotson it was definitely laid down that it was not part of a Licensing Authority's duty to have regard to a difference between road and rail rates. This decision was followed in the case of Stevenson Transport.
In another case, that of Alexander, the Appeal Tribunal supported the main principle of the previous decisions on rates, but decided, on the question of " suitability " of transport services, that the fact that lower rates were charged by road than by rail should be taken into consideration if it was proved that the traffic would not pass at all except for the lower rates.
On the whole, the attitude of the Licensing Authorities and the Tribunal has been that they were not entitled to take rates into consideration. Accordingly, the Government apparently decided that this limitation should be removed. Although early prints of the Transport Bill contained a mandatory injunction in this respect, the words of the Act, after strong representations, allow wide discretion to Licensing Authorities by
requiring them to have regard to various matters, "including, to such extent as may in all the circumstances appear proper, the charges made and to be made."
It would appear that charges in themselves will not necessarily constitute an important ingredient in the decision of an application, and that Licensing Authorities will take charges into account only where there is a strong argument for doing so. Detailed proof and expert evidence will have to be carefully sifted before rates can be used effectively in either argument or judgment.
The final part of Section 9 of interest to transport operators is sub-section 4. This introduces a new ground on which an A or B licence may be suspended or revoked. The ground is that the holder of a licence, for the purposes of an application for a licence or for a variation, made a statement of fact which, whether to his knowledge or not, was false, or made a statement of intention or expectation which had not been fulfilled.
This provision now applies only to statements made after the passing of the Act. At first many thought that this additional power was unjust, as the nature of a business may change during the currency of a licence because of circumstances beyond the control of the licence holder. If it had applied to statements made during the operation of the restrictive provisions of the Transport Act, 1947, there might sometimes have been hardship.
However, this provisiOn is likely to be of greater benefit to existing operators, in that it will prevent frivolous applications by newcomers, especially when applicants would have little regard for the higher standard of responsibility and public duty now recognized by independent hauliers.
Every new case before a Licensing Authority will be watched with special interest. The early appeal cases should give guidance to the trend of modification to existing principles and the establishment of new principles arising from the amending legislation.
Negotiating Committees Helpful • Operators may well ask where the road/rail negotiatitig committees will stand. In the past, and even during the period of nationalization, they have done much to save expense on the part of applicants, and save time on the part of Licensing Authorities. In the early stages, these committees are likely to be much used, as only those already in the industry and in touch with licensing procedure will be able to guide newcomers or applicants for variations of existing licences.
It has been thought that to amend the licensing procedure during what must be a transition period in road haulage was unadvisable. Although the Parliamentary Secretary to the Ministry of Transport stated in the House of Commons in December last that a new comprehensive Road Transport Bill would be introduced before long, the Government maintained the amendments contained in the Transport Act, 1953.
Whilst an effective code of law has been established under the 1933 Act, some operators think that there are provisions in the existing Road Traffic Acts that require amendment. Therefore, the Government would make most progress and follow a course acceptable to all shades of opinion in transport if they set up an independent committee of inquiry with wide terms of reference in connection with the Road Traffic Acts. One of the committee's duties should be to examine the licensing procedure set up by decisions by Licensing Authorities and the Transport Tribunal as a result of the changes brought about by the Transport Act, 1953.