Differing opinions have greeted a High Court decision not to declare that principles agreed by the Bus and Coach Association (BCA) and DfT about circumstances under which community transport organisations would need to hold an O-License are correct in law.
However, the court did conclude that there is no validity to DfT’s argument that a lack of certainty or clarity surrounds the test for determining whether an organisation is operating exclusively for non-commercial purposes. Because of that, it will no longer be possible for enforcement of EC Regulation 1071/2009 to be deferred. The agreed principles are likely to be part of future DfT guidance.
Decisions on non-commercial should be taken
Features of relevance, including the organisation’s size, the level of payments received and whether contracts have been won in competitive processes, will be considered when ascertaining whether it is exclusively non-commercial. If it is not, an exemption to O-Licencing cannot be made use of.
While acknowledging that such a test may be difficult, the judges say that “is not… a good reason for choosing not to enforce the law.”
Additionally, if an organisation denies that it is operating in breach of the regulation, that does not justify a refusal by DfT to act, says the court.
Some organisations representing community transport organisations claim that the decision is a victory for the sector when compared to what BCA originally wanted.
DfT now needs to focus on guidance
TAS Partnership Director John Taylor says: “At the heart of this case lies a fundamental difficulty in coming up with abstract interpretations of the meaning of non-commercial purposes. The moment a simple principle is reached, a countervailing case is likely to arise that renders it unfit for purpose.”
Mr Taylor adds DfT will now have to focus on producing more detailed and explicit guidance.
Says BCA’s Martin Allen: “This decision demonstrates that DfT cannot escape without enforcing the Regulation. It means some community transprot organisations will be required to obtain O-Licences.”
