BCA’s call for tougher stance on community transport permits ruled out by High Court

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The Bus & Coach Association (BCA)’s Judicial Review claim, calling for more stringent regulation of community transport (CT) operators with section 19 and 22 permits was dismissed by the High Court on 6 December.

The case hinged partly on an assumption by the Department for Transport (DfT) when implementing EU regulation on licensing, that operations under section 19 and section 22 permits were exempt from requiring an O-licence because they are deemed “exclusively for non-commercial purposes.”

The Court concluded that there was no dispute between the parties as to the applicable legislation or to the principles that should be adopted in interpreting it, hence no useful purpose would be served by issuing a declaration.

The claim sought to apply pressure for more robust enforcement of EU regulation (1071/2009). The assumption was made by the DfT when implementing 1071/2009 into GB law that operations under s19 and s22 Permits were exempt because their operations were “exclusively for non-commercial purposes.”

The BCA challenged this view, in the light of some Permit operators undertaking school and social care contracts, and competitively tendering against PSV operators. In the BCA’s final claim it asked for a declaration on whether operations are exclusively for non-commercial purposes to take into account the level of payment received; the proportion of work won in competitive procurement; the size and scale of operation in the market; whether the operation could afford to licence as a PSV operator; and whether the operator uses volunteers or relies on paid staff.

The BCA also asked for a declaration that where an undertaking does not operate exclusively for non-commercial purposes, then drivers cannot rely on the exemptions from requiring a full D/D1 driving licence and a DCPC.

The Court considered the appropriateness of making a declaration as to the law in a case where there was no particular set of facts to consider at the core of the dispute and concluded that in the absence of a specific dispute about interpretation of the phrase ‘exclusively for non-commercial purposes,’ it could not and should not make an abstract declaration, and that such a declaration would have no binding legal force. It recognised that there will be disputes about whether a particular operator comes within the exemption or not, but that will depend upon the facts in any particular case, and it acknowledged that determining this may be far from straightforward.