Overview

A bus and coach operator has succeeded at appeal in the Upper Tribunal Administrative Appeals Chamber (“Upper Tribunal”) following the revocation of their operator’s licence (Edinburgh Coach Lines Ltd: [2025] UKUT 146 (AAC) - GOV.UK) for lack of professional competence after the Operator had attempted to appoint a new transport manager during a period of grace. The Upper Tribunal’s decision to overturn the revocation marked its departure from previous case law and brought Appellant’s rights under Article 1 of the First Protocol and the principle of proportionality to the forefront when considering cases such as this.

Background

The Operator was granted a Public Service Vehicle standard international licence with effect from 1 April 1992. They had two operating centres in Edinburgh, with authorisation for a total of 45 vehicles with 34 vehicles in possession.

On the removal of Mr Walton as Transport Manager (“TM”) from the licence, the Office of the Traffic Commissioner (“OTC”) wrote to the Operator on 16 August 2024 advising they no longer satisfied the requirement of professional competence in the absence of a TM and that the Traffic Commissioner (“TC”) was considering revoking the licence. The same day, an application was submitted to nominate Mr Fyvie as the replacement TM.

On 27 August 2024, the OTC wrote to the Operator informing them that the TM application was incomplete and that the licence remained at risk of revocation. To complete the application, Mr Fyvie needed to provide a photograph of his passport. Mr Fyvie encountered issues submitting the photograph digitally and therefore attended a Post Office branch to verify his identity. On completion of the verification process, Mr Fyvie believed that his details would be provided to the OTC and that this was the end of the process.

On 2 September 2024, Mr Fyvie was instructed to “sign in to view the result of your identity check”. On 1 October 2024, an OTC case worker reported the application to the TC on the basis that it was “incomplete” and that “there [had] been no response from the operator”.

On 11 October 2024, the Deputy Traffic Commissioner (“DTC”) refused the application to add the new TM because the application was incomplete and instructed that the licence be passed to National Compliance for revocation. The Operator was informed on 15 October 2024 that the licence was revoked as of that day.

The DTC later granted a stay of the revocation pending appeal to the Upper Tribunal.

Grounds of Appeal

The Operator lodged for an appeal on the following grounds:

Ground 1

It was wrong not to give the Operator the chance to have the potential revocation of their licence heard at a public inquiry (“PI”).

Ground 2

The decision to revoke the licence on the application of the OTC Central Licensing Office’s “new operating instructions” was disproportionate.

Analysis and decision on Ground 1

It was submitted that the DTC’s decision to proceed straight to licence revocation rather than convene a PI meant that the Appellant could not advance material facts in support of the nomination of the new Transport Manager. For instance, the Operator had in fact four qualified TMs at the time the application to nominate Mr Fyvie as TM was made. Moreover, Mr Fyvie had made a genuine application to nominate himself by way of certificates of his professional competence. The representative for the Operator submitted that as was case in Atbus, these circumstances dictated that a public inquiry should have been held in accordance with the principles of natural justice.

The Judge agreed and held that fairness dictated a PI ought to have been held. The Judge stated that by proceeding directly to revocation without further ado, the DTC was “plainly wrong”.

Analysis and decision on Ground 2

By way of context, a consultant for the Operator called the OTC on 16 October 2024 to query the procedure followed by the DTC when deciding to immediately revoke the licence. She was informed by a member of staff that instructions from TCs were as follows:

On receipt of an application from an Operator and subsequent request for further information, if no response is received then staff are specifically prohibited from contacting the Operator.  Further, the case must be referred to the TC to revoke the licence.

The representative for the Operator submitted that these instructions represent a disproportionate interference with the Operator’s property for the purposes of Article 1 of the First Protocol (to conduct a fair balancing exercise between the general interest of the community and the private interests of the property owner). They contended that the new instructions preclude any enquiry into the wider circumstances of the case and impose a “blunt instrument approach” to the review of Operator’s compliance with s.14ZA Public Passenger Vehicles Act 1981, contrary to Atbus.

Further, the representative for the Operator cited the Bryan Haulage question in that the OTC’s “new operating instructions” removed the requirement for the TC to consider proportionality prior to making the decision to revoke a licence. By not making further inquiries into their concerns regarding an Operator’s licence, the TC in effect fails to address the question “is the conduct such that the Operator ought to be put out of business?” (Bryan Haulage).

In her decision, the Judge concurred that the revocation of an Operator’s licence should be “proportionate to the conduct involved and the operator should be given a fair opportunity to correct the situation”.

In the representative’s submission, he recognised that the new process of sending a single request letter before revocation would not be automatically disproportionate, however in cases such as the operator has taken steps to appoint a duly qualified individual and there are no road safety concerns, this approach removes the requirement for TCs to consider proportionality prior to revocation. The removal of this also does away with accordance with Article 1.

He also submitted that where broader circumstances are not considered, such as in this case, the question from Bryan Haulage will always result in operators being put out of business. This case is an example of the new operating instructions leading to a ‘plainly wrong’ outcome.

The Upper Tribunal, found that other than the issue of Transport Manager, there was no ground for revocation as the Operator had made a genuine attempt to complete the process and there were no road safety concerns, therefore the decision was plainly wrong. More generally, the decision held that ‘revocation should be proportionate to the conduct involved and the operator should be given a fair opportunity to correct the situation’.

In relation to the new ‘single request letter’ process, the Upper Tribunal did not find it necessary to rule that this will lead to unfairness, but it did in this case because the lack of a Public Inquiry. Therefore, it was decided to remit this case to the TC to hold a PI.

This decision is significant as it is explicitly deals with the need to consider broader circumstances surrounding operator licencing and revocation in accordance with Article 1 to ensure that revocations are proportionate to the operator’s conduct and operators are given a fair opportunity to correct the situation.