Young v Roads and Maritime Services [2013] NSWADT 216

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Young v Roads and Maritime Services [2013] NSWADT 216 Hearing dates: 3 April 2013 Decision date: 04 October 2013 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: I confirm the decision to refuse Mr Young accreditation to operate a passenger transport service. Catchwords: Passenger Transport - public passenger transport service -accreditation Legislation Cited: Passenger Transport Act 1900 Passenger Transport Regulation 2007 Cases Cited: McTiernan v RMS, unreported, District Court, Newcastle, Judge Maiden SC, 27 February 2013 Category: Principal judgment Parties: Christopher Young (Applicant) Roads and Maritime Services (Respondent) File Number(s): 133004

REasons for decision

Introduction 1Mr Young operates a vehicle rental business that, among other things, rents out passenger buses. In September 2012 he applied to Roads and Maritime Services (RMS) for accreditation to operate a bus service of four buses as a public passenger transport service. The application was accompanied by a three page letter from Mr Young in which he made specific comment as to: * His proof of competency to be an operator * His ability to provide proof of Council approval for the storage of the buses. 2The contents of that letter were important. The relevant portions read - 1. Competency I have personally been involved in the retail automotive industry including vehicle rental operations (car, bus and truck) all my working life of 40+ years, and have operated as a sole trader renting trucks and buses for the past fifteen years. I also spent eight years as an Army Reservist, mostly as a Transport NCO within an Infantry Officer Training Unit, naturally involving the types of responsibilities covered by this application. The specifics of this service are covered in the attached reference from my Army Transport Supervisor, and my service records as attached to my request for Standing from the University of Sydney. Further training has been completed. I paid the $850 fee, attended the 2001 Certificate of Coach Management course at Sydney University, sat and passed the formal examination at its conclusion as well as the first assignment of short answer questions (result sheet attached 40/40). I submitted the remaining assignments to Sydney but did not follow up the issue of the Certificate at the time, as I had been advised during the course by the attending industry representatives that my operations did not require accreditation. In 2005 I applied to obtain a copy of the Certificate for my records. Following numerous telephone calls and an unanswered letter, I was finally advised by telephone the course records were a mess and there was no record of even my test results, let alone the receipt of my remaining assignments. Following a number of office relocations during those intervening years, my copies of these remaining assignments and my notes in completing them could not be located. As a result of this, and the stated lack of other records, I formally applied for Standing in a letter of May 2007 (credit or previous learning / experience), by attaching my academic, Army and aviation records and providing a reference as to my managerial background. This letter as well as a follow up in December 2007 also went unanswered! I finally wrote to the Vice Chancellor out of frustration in 2009 and received a reply which was frankly an academic defense of ineptitude and laziness. The reply failed to deal with my specific problem when given the opportunity. I replied to this letter in June 2009 again seeking a ruling on my application for Standing and pointing to the discrepancies in the position Sydney University was defending. Disappointingly, no response was ever received to this letter. The remaining assignments from memory dealt with business planning and marketing, basic elements of expertise proven by the survival of my own business over fifteen years. Contact from your Department over the years has always been responded to, and I have no record of customer complaints from either yourselves or the Office of Fair Trading. I would request the attached material covering this background and experience be considered as proof of my competency. 1. Council Approval I would assume the requirements of the Act regarding Council approval for the location of storage of buses is to ensure these remain off street when not in use, thereby somewhat secure from any party wishing to damage, deface or tamper with them. I live and work from a 36 acre farm in .... The location is along an access only road, one kilometer off the main ...Rd, well hidden from view. The site is private and secure, only accessed by local traffic. All my idle rental fleet including buses have been stored here continuously for over 15 years without conflict, complaint or damage. I hire my rental vehicles from a site in [town] which has insufficient room or security for storage. I transport them the 6km from home as business requires them. I do however recognise that as rural land, the property is not formally zoned for this useage and by seeking Council consent I would simply be inviting difficulty. I would however point out though, there has been the exercise of continual use, and it is a common occurrence for small fleets of trucks and buses to be kept on rural land. This is noticeably evident in regional areas. I have attached the current rate notice confirming details of this home farm comprising two titles and a total of 36 acres. In fact I had a meeting with your Ms Bissett on this site 6/10/2010 where she inspected the buses and could attest to the security and safety of the vehicles on site. Any argument advanced regarding a potential increase in traffic from this storage activity, is easily negated by an analysis of the zoning allowance of dual occupancy per title which could provide four complete households on the farm. I have only one household, and myself as the only occupant so daily vehicle traffic is well below that envisioned by the zoning allowed development. In addition to this, I have a second, separate sealed access only road to the rear of the farm which remains available but unused. I would contend that the particulars of this site fall within the general thrust and intentions of the Act, with the added benefit of on site security. I would ask that in view of its long term use, it be considered approved. 3On 21 September 2012 RMS wrote to Mr Young asking that he supply RMS with: * A training certificate saying he had successfully completed an approved operator training course; and * A letter of approval from the relevant council to keep the number of buses specified at the premises specified. The letter advised that his application would be held in abeyance "pending receipt" of those items. The letter did not consider the explanations relevant to those matters Mr Young had already provided. 4On 25 September 2012 Mr Young replied. He noted that RMS had made no reference to his earlier letter. He submitted that production of a training certificate was not required by the relevant Regulation and argued that he had provided sufficient, alternate proof of his competence. With respect to Council approval he said he confirmed that, "Council would be reluctant to provide an approval or conditional approval in writing." 5RMS responded on 27 September 2012 by acknowledging receipt of Mr Young's letter and requesting the same information again. It did not address or respond to any of the matters raised by Mr Young. 6RMS subsequently made an undated decision to refuse Mr Young's application to operate a bus service. Among other things that letter advised- 3.2 In this particular case, there are two obligatory standards which the Delegate of the Director General has determined you have not met. These are as follows:- The applicant must undertake and successfully complete a course of training relevant to operating bus services and conducted by an approved higher education institution, and; The applicant must provide a copy of an approval from the relevant council to keep the buses required for the service at the premises nominated by the applicant. 3 .3 Your submissions concerning the training you have undertaken with the Institute of Transport Studies at the University of Sydney have been considered however, the fact remains that you have not provided formal evidence that you have successfully completed` the entire worse-. 3.4 Further, your submissions concerning your difficulty in obtaining an approval from the local council to keep buses at your premises have also been considered. The purpose of this requirement relates to acceptance by the local government authority that the premises nominated are acceptable for the purposes of storing, maintaining and operating a fleet of buses. In the absence of the necessary approval document from council it is not possible to approve your application. 7Mr Young applied for internal review of that decision on 15 November 2013. In doing so he supplied a letter from his local Council regarding storage of buses at an industrial site leased by him. 8On 4 December 2012 the decision to refuse Mr Young's application for operator accreditation was confirmed on internal review. The following reasons were given for the decision - The Passenger Transport Act 1990 and the Passenger Transport Regulation 2007 clearly set out the purpose and requirements of applicants for bus operator accreditation. The application process its requires applicants to submit documentation that satisfies the legislative requirements such as an accountant's statement confirming the applicant's financial capacity to maintain the number of buses to be operated in a safe and roadworthy condition, references of good repute and the application fee. In addition, applicants are to provide evidence that they have undertaken and completed an approved training course and have gained approval from the relevant local government authority to operate buses from the premises that they nominate. Having comprehensively reviewed all the material that you have submitted with your Internal Review I note that you have attained a Science qualification but withdrew from two (2) other academic courses; Masters of Commerce in 1974 and a Graduate Diploma of Computer Science in 1977. As for your military record, aviation licences and other experiences I fail to accept how they substitution for successfully completing the approved Bus Operator Training course. The letter from Port Stephen Council dated 7 November 2012 provides approval to store buses within one (1) of the light industrial units on site leased by you. However, this letter is insufficient to satisfy the requirements of clause 11(2) of the Passenger Transport Regulation 2007 in that the number of buses which the approval applies is not indicated nor are the dimensions of the premises provided so that a determination can be made to as to its appropriateness to depot the four (4) buses as applied for in your application. Taking all the matters that you have raised into consideration, I am unable to waive the requirements for you to undertake and complete the approved training course based on your claims of what could be considered to be an unfortunate series of administrative blunders. In addition, the letter from Port Stephen Council dated 7 November 2012 simply does not provide sufficient information of the premises that you have nominated to satisfy the legislative requirements. The fact remains that applicants for bus operator accreditation are required to demonstrate that they have satisfied the standards applicable to the style of accreditation that is applied for. Accordingly, I affirm the decision of the Delegate of the Director-General to refuse your application for bus operator accreditation. 9On 7 January 2013 Mr Young applied to the Tribunal to review the decision of RMS. I heard the application at East Maitland on 3 April 2013 when Mr Young represented himself and Mr Wozniak represented RMS.