In The Land Transport Appeals Tribunal
Sitting at Lautoka

Appeal # 61 of 2014
Appeal # 68 of 2014
Appeal # 9 of 2015

Between:

Sunbeam Transport Limited (Appeal # 61/2014)
Pacific Transport Limited (Appeal # 68/2014)
Paradise Transport Limited (Appeal # 9/2015)
Appellant

And:

Land Transport Authority
Respondent

And:

Kadar Buksh Limited
Khan Buses Limited
Valley Comfort Transport Limited
Shankar Singh Transport
Taunovo Bus Company Limited
Maharaj Buses Limited
Sunset Express Limited
Interested Parties

Appearances/Representations:

For SunbeamTransport Limited: Mr Viren Kapadia.
Pacific Transport Ltd: Mr Ramesh Prakash.
For Paradise: Mr Vasu Pillay.
For LTA (Respondent): Ms D Prakash.
For Kadar Buksh Limited : Mr Faiz Khan.
Valley Comfort Transport Limited: No appearance.
Khan Buses Ltd: Mr Naveed Khan.
Taunovo Bus Company Limited: Mr Filimoni Vosarogo.
Sunset Express Ltd: Mr Filimoni Vosarogo.
Maharaj Buses Limited: No Appearance

____________________________
Date of Hearings: 14th August 2015 (Lautoka), 17th August 2015 (Nausori) and 7th October 2015 (Lautoka)
Date of Decision: 16th December 2015

Judgment

Introduction

The three matters are inter-related and deal with the same issue. All the parties agreed to have a consolidated hearing. 

In 61 of 2014, Sunbeam Transport Limited is the appellant. In 68 of 2014, the Appellant is Pacific Transport Limited. While in 9 of 2015, the Appellant is Paradise Transport Limited. All the Interested Parties have been listed. Some are interested parties in all the three matters. This Tribunal has noted that the Tribunal has served all the parties and they have notification of this appeal. 

All the three appellants have appealed the decision of the Respondent, LTA where it approved new Road Route Permits as follows:

Route	Depart/Arrive	A	B	
Lautoka	Depart	5.30am	6.30pm	
Suva	Depart	5.30am	6.30pm	

Brief History of the matter

KBL had on 1st February 2011 applied for a new Road Route Licence from Lautoka to Suva via all major towns and Hotels/Resorts along the highway and return. The reason for the application was to provide early morning and late evening express coach service based on public demand. The advertisement in the local daily paper set out the proposed timetable, with departure times at 6.00am and 6.30pm respectively, from Suva to Lautoka and Lautoka to Suva. 

The LTA on 12th December 2014 approved (subject to variation) KBL’s application. According to the ‘decision letter’ the Land Transport Authority had deliberated on the oral and written submission by the parties on 27th November 2014. 

On 9th January 2015, Paradise Transport Solicitors had filed a motion for stay to restrain KBL from operating the said trips until the final determination of the matter. Following a hearing of the motion, the Tribunal on 20th March 2015 in a written ruling granted stay of the LTA decision pending final determination of the appeal. 

The Grounds of Appeal

In 61 of 2014 (Appeal filed by Sunbeam) the grounds of appeal are listed as follows:

“1. That the Authority erred in granting the said application of Kadar Buksh (who is not a Queens Road operator) for a new Road Route Permit in breach of Clause 1 (b) and (c) of the PSV Guidelines approved by the Board of the Authority on the 24th April 2014 pursuant to section 38 of the Land Transport Act 1998 (the Act.

2. The Authority erred in granting the said application of Kadar Buksh in breach of the “encroachment” principle as Sunbeam who is an existing operator on the Queens Road Route had also applied at similar times.

3. The Authority erred in not providing any reasons in its letter dated 12th December 2014 addressed to Kadar Buksh for granting Kadar Buksh its application for a new Road Route Permit on Queens Road when it is not a bus service operator on Queens Road between Suva and Lautoka.

4. The Authority erred in granting the said application in breach of the established practice and procedure of the Authority which is that existing bus operators like Sunbeam who operate on Queens Road are to be considered first to cater for any need that may exist to minimize effect on other bus operators rather than granting totally new trips to new operators. The actions of the Authority are thereafter in breach of Regulation 5 (1) (b) of the Land Transport (Public Service Vehicles) Regulations 2000 (the PSV Regulations).

5. The Authority erred in granting the application to Kadar Buksh when existing operators such as Sunbeam and Sunset Express Limited had made applications for additional services at the times applied for by Kadar Buksh. The Authority failed to apply the practice established through the many Courts and Tribunal decisions over many years and codified recently in the PSV Guidelines approved by the Board of the Authority pursuant to Section 38 of the Land Transport Act 1998. The Authority has not given any reasons as to why it did not apply the encroachment principle or follow its own Guidelines on encroachment.

6. The Authority acted in breach of the Act and the PSV regulations when granting the new application when it did not give any reasons for the grant in breach of established encroachment principles and therefore its decision is irrational, unreasonable and unfair to Sunbeam.

7. The Authority erred in unilaterally and without any prior notice amending the timetable for the application by Kadar Buksh when it had applied for similar times along with Sunbeam who had applied at similar time at 5.45am and 6.15pm respectively. The Authority in amending the timetable unilaterally and without notice to the Applicants and the Objectors has acted in breach of the Principles of natural justice and in breach of the Act and the PSV Regulations as these times were not the times that were applied for by Kadar Buksh. The unilateral amendment of time would affect Sunbeam and other public service operators who would have had no opportunity to object to the same. The Authority has erred in not giving a timetable for arrival and departure on the amended times.

8. That the decision of the Authority to grant a new Road Route Permit to Kadar Buksh has been arrived at in a grossly unfair and unreasonable manner and in breach of the principles of natural justice and the PSV guidelines.

9. The Authority has failed to properly evaluate the evidence, the documents and representations made by Sunbeam in coming to its decision to approve the application of Kadar Buksh for a new permit. In particular the Authority did not consider the application by existing bus operators on similar timetables in line with established part Tribunal decisions and case law on encroachment.

10. The Authority failed to properly evaluate the documents and evidence before coming to a decision to grant Kadar Buksh the said services. The decision of the Authority is procedurally and substantively unfair, unreasonable and flawed and cannot be supported having regard to all the evidence facts and circumstances.

11. Sunbeam reserves the right to file amended or additional grounds of appeal upon receiving reasons for the decision and the record of the proceedings of the Authority.”

In 68 of 2014 (Appeal filed by Pacific Transport) the grounds of appeal are listed as follows:

“1. The Authority erred in proceeding to hear and grant the application to KBL approving a new Road Route licence when the Application was defective in form and substance and in particular, did not state whether the trips applied for were for Express or Stage Carriage service and the application as approved by the Authority is not in accordance with the Requirements as approved by the Authority is not in accordance with the requirements under the Land Transport Act 1998 and Land Transport Regulations (Public Service Vehicle) 2000.

2. That the Authority in considering and approving the new Road Route licence to KBL on the application as applied for and advertised acted with procedural irregularity and resulting in unfairness. 

3. That the Authority erred in failing to give any or any adequate reasons for its decision of 12th day of December 2014 whereby it granted an approval to KBL for new Road Route licence establishing two daily trips departing Lautoka for Suva via Queens Road at 5.30 am and 6.30pm and departing Suva for Lautoka Via Queens Road at 5.30am and 6.30pm.

4. That the Authority erred in granting the approval for a new Road Route licence to KBL which was a substantial variation of the proposed timetable in the application and thereby resulting in unfairness.

5. That the Authority failed to properly evaluate the evidence , documents and representations and taking all relevant considerations into account in coming to its decision to grant a new Road Route licence to KBL and in particular the Authority did not consider that:

(a)	The needs of the public did not require the establishment of new trips as the needs of the public were adequately met by the existing services.

(b)	The establishment of the additional trips would substantially and adversely affect the following existing trips of Pacific Tranport Limited

(i)	Daily Express trip departing Lautoka for Suva via Queens Road at 6.30am.

(ii)	Daily Express trip departing Suva for Lautoka via Queens Road at 6.45am.

(c)	That KBL did not have any confirmation from Local Government Authorities and Town and City Councils of the availability of proper bases at relevant Bus Stations and stopping points at the times of departures and arrivals.

(d)	The Authority did not consider calling for or relying on proper load checks reports for the establishment of the need for the proposed service.

6. That the application for the new Road Route licence considered and approved by the Authority seems to be for Daily Express Service and the Authority erred in granting such application in breach of the specific provisions of the Land Transport Act 1998 and Regulations 2000: when some of the stopping points granted were not at hotels and/or towns and thereby the Authority in granting its decision in such manner exceeded its jurisdiction.

7. That the Authority erred in granting the approval of a new Road Route licence to KBL in breach of established principles and existing policy guidelines in that:

(a)	The Authority granted a new Road Route licence to KBL in a completely new route and area of operation when KBL area of operation was mainly Lautoka/Ba/Lautoka routes.

(b)	The Authority substantially deviated from its own current policy guidelines when granting the approval of the new Road Route licence to KBL.

(c)	The Authority deviated from its current policy guidelines after the hearing of the application of KBL was completed and adjourned for decision and in consequence has resulted in unfairness.

8. That the said decision of the Authority in granting the new Road Route Licence to KBL has been arrived at unfairly and/or unreasonably and/or in breach of the principles of natural justice.

9. Pacific Transport Limited reserves the right to file further and/or additional grounds of appeal upon the receipts of record of proceedings before the Authority.”

In 9 of 2015 (filed by Paradise) the grounds of appeal are listed as follows:

“1. That further erred in unilaterally amending the timetable of KBL to depart Lautoka and Suva at 5.30am when KBL had applied to depart Lautoka and Suva at 6.00am. The Authority did not give any prior notice or indication to Paradise that it would amend the time by 30 minutes. Paradise being one of the objectors to the application did not get any prior notice by the Authority of their intention to amend the time. As a result, the Authority has acted in breach of the principles of natural justice and in breach of legitimate expectations of Paradise that it would be allowed to address the Authority if it wanted to change the times at which KBL had made its application.

2. The Authority erred in not providing any reasons in its letter dated 12th December 2014 addressed to KBL when it unilaterally amended the departure time from Suva and Lautoka from 6.00am as applied to 5.30am. The decision by the Authority to change the time is arbitrary and irrational.

3. The Authority erred in amending the timetable in the manner and at the time it did is not what Kadar Buksh Limited had applied for and the actions of the Authority are therefore in breach of Regulation 5 (1) (b) of the Land Transport (Public Service Vehicles) regulations 2000 (the PSV Regulations). The Authority in its report to the Chairman on 23rd August 2014 stated that Paradise is objecting to KBL’s application on the ground that Paradise has a pending application which departs Suva at 5.30am before the Tribunal. The Authority had prior knowledge of Pardise’s appeal pending before the Tribunal and the application by KBL should not have been heard by the Authority.

4. Paradise reserves the right to file amended or additional grounds of appeal upon receiving reasons for the decision and the record of the proceedings of the Authority.”

The Function and Powers of the Tribunal

Section 40 (2) of the Land Transport Act provides for the function of the Tribunal, which is “to hear and determine appeals against decisions of the Authority relating to –

(a) licensing of drivers under section 56;

(b) any matter requiring a decision of the Authority under  Part VI; and any other matter prescribed by the Minister by regulations."

The powers of the Tribunal for the purposes of hearing and determining appeals according to Section 46 are to "(a) to issue a summons to a witness in the prescribed for; (b) to call for the production of books, plans and documents; (c) to examine witnesses on oath or affirmation; (d) to admit any evidence whether written or oral and whether or not such evidence would be admissible in civil or criminal proceedings; (e) to exclude any person if necessary so as to ensure the proper conduct of the appeal or to preserve order."

Furthermore, under Section 46 (2) "on an appeal under this Part the Tribunal may dismiss the appeal or make such order as it thinks just and reasonable in the circumstances directing the Authority to issue, transfer, or cancel any licence, certificate or permit, or to impose, vary, or remove any condition or restriction in respect of a licence, certificate or permit, and the Authority shall comply with that order." And under Section 46 (3) "Upon the determination of an appeal under this section the Tribunal may make such order as it thinks just with the respect to the costs of the appeal, and any person to whom any such costs are awarded may recover the amount of those costs in any court of competent jurisdiction, as a debt due from the person against whom those costs are awarded."

According to Section 47 the Tribunal "for the purposes of the hearing and determination of any appeal the Tribunal shall have regard to those matters which the Authority is required to have regard to in considering an application under this Act."

The Hearing

Ms. Franisese Kinivuwai, Former Manager Legal for LTA and Ms Marica Naulu, Manager Public Transport, LTA were subpoenaed to give evidence at the hearing. All the parties were given 28 days to file written submissions for consideration by the Tribunal. 

Analysis
The Tribunal has noted the grounds of appeal filed by the Appellants. It has quoted in full the grounds of appeal filed by each of the appellant's herein. However for the Tribunal to be able to deal with the issues raised on appeal the Tribunal would briefly summarise the grounds of appeals from the three appeals as follows:

(a)	Reasons for decision.

(b)	PSV Guidelines.

(c)	Encroachment.

(d)	Timetable.

(e)	Load Checks.

(f)	Management Reports.

(g)	Regulation 5.

The Tribunal will now deal with each issue in turn.

(a)	Reasons for the decision –

One of the common ground of appeal advanced by each of the Appellants is that no reasons have been given by the Land Transport Authority Board for the decision that it gave in granting KBL the Road Route Permits from Suva to Lautoka and vice versa. The argument advanced by the Appellants is that the LTA Board also did not give reasons for varying the timetable and for giving a different time from that applied for by KBL. The decision letter has been perused by the Tribunal. It contains the application date, advertisement date, the date of deliberation by LTA, the proposed trips, the approved trips and the conditions of approval. The letter does not give reasons for the approval and more specifically the reasons for the variations of the time from that which was applied for. 

This Tribunal would like to highlight what the Fiji Court of Appeal recommended to the Transport Control Board the predecessor to Land Transport Authority, which is still pertinent now in Pacific Transport Ltd v Khan [1997] FJCA 3; Abu0021u.1996s (12 February 1997). The Court stated that "we strongly recommend to the TCB what was recommended to it in 1984 by this Court - namely, that in all cases, it give brief reasons for its decision. Failure to do so involves parties in more cost and litigation. As is noted in some of the authorities, a failure to give reasons can make a 'disappointed' litigant a 'disturbed' litigant."

This Tribunal Notes from the Fiji Court Appeal decision that the practice required of the TCB and now the LTA is to give reasons for its decisions. It can be brief. But reasons must be given. In the given circumstances the LTA was required to explain its variation of the time from that was applied for and why the application was being approved. This is not contained in the decision letter. No party to proceedings before the LTA should be required to look within the decision letters and make out what the decision of the LTA is. The decision of LTA for matters that are before it must be briefly and clearly stated in the decision letters. 

In her evidence before the Tribunal, Ms. Kinivuwai informed the Tribunal that "no reasons for the decision was given. Nowhere in copy records any reasons for decision." The LTA as an Administrative/Statutory body must give reasons for its decision. In the said matter it was pertinent that LTA gave the reasons for its decision as it changed the time from what was actually applied for. By failing to give reasons the LTA opens up its decision to numerous interpretations. Even the Tribunal and the Courts will have no idea how and what was the rationale behind the LTA giving such a decision. It can always draw different inferences. A clear and brief reason or reasons with the decision will assist everyone. 

(b)	PSV Guidelines-

The Tribunal is aware of the PSV Guidelines developed and utilised by the LTA. The Tribunal was informed by Ms Franisese Kinivuwai that it was an internal policy of the Board and it was amended before the hearing of the application in September. She also gave evidence that the Board was not comfortable with the encroachment policy. It was amended in September and the encroachment policy was re-worded. Furthermore she informed the Tribunal that the change to the PSV Policy was not conveyed to any party. 

While the guidelines are there to assist LTA it must be applied consistently and fairly. If consultation has taken place and all stakeholders been involved in its formulation, they must also be kept abreast of its amendments. The reasons for the involvement of the stakeholders were to have their input and have joint ownership of the guidelines was between LTA and the PSV industry. The process of changing the guidelines should have been similar to the process of its formulation, which is in consultation with the stakeholders, the Bus Operators in this case. By failing to involve the Operators the Board is missing out on the input from the industry operators. The LTA Board must be mindful that if the industry members, as the service providers have been consulted in the first place and they having provided ideas, which have been taken on-board to assist the Board in dealing with them, the Board should at least as a matter of courtesy consult the Bus Operators when changes are made to the policy. 

(c)	Encroachment-

Mr Faiz Khan for KBL argued before the Tribunal that the submission by Sunset and Sunbeam in relation to encroachment is unfair and unreasonable. His argument is based on the fact that both bus companies acquired the Suva/Lautoka Route later and as a result they should not be talking about encroachment, when they themselves encroached. In contrast the argument by Sunbeam and Sunset is that the encroachment policy which has been in place for this while is to allow existing operators to make applications in their own areas of operation and not to allow a new operator to encroach into an existing bus operator's area of operation. 

This Tribunal understands the rationale of the encroachment policy is to provide existing operators to grow within their routes without competition. Competition within a route is not encouraged in the bus industry as the bus operation involves considerable investment and risks. The bus industry is a highly regulated industry. Bus operators need to maintain adequate fleets for service. The commitments are high, with supplies and part to be readily available for maintenance of the fleet. The LTA and the bus operators had developed and harnessed the principle of encroachment to provide existing operators in the routes comfort of operation without any fear that some other operator will take away their loads. The encroachment principle so developed is for all operators as it provides valuable protection for all of them.

(d)	Timetable -

The application lodged by KBL proposed the route from Lautoka to Suva via all major towns and hotels/resorts along highway and return. The proposed departing time was 6.00 am and 6.30pm from Lautoka and Suva. The approval was granted for 5.30 am and 6.30 pm. The Tribunal has noted that no reasons have been given for the variation. 

The Tribunal was informed by Ms Marica Naulu, Manager Public Transport Unit, LTA that "KBL was the Principal applicant for 6am trip. Khan and Sunset were competing application… for fairness each given timeslot – was to go back to them and ask them for appropriate time by phone. Was instructed to call them by phone. No letters written. Did not call objectors to application."

From the evidence of Ms Naulu it is clear that the Board tried to satisfy a number of operators. When the applications were dealt with by LTA they were not able to determine the application on the basis of the times that were within the application. LTA opted to call the bus operators to "negotiate" a time. The process, which is calling to sort out the times, that was undertaken by LTA was wrong. When an application is being dealt with it must be dealt with in the presence of all the parties. The LTA cannot separately "negotiate" with an operator in the absence of all the other parties. The timing of trips and the time table is crucial aspect of bus operations and it is not only relevant to the applicant but other operators. In the matter before the LTA, while KBL was the applicant there were other operators who had interest in the route. By only calling and dealing with some parties the LTA was unfair to those other parties it did not call or give an opportunity to be heard. 

The LTA did not act fairly when it resorted to calling the operators separately following the Board deliberations. The LTA Board must deal with all issues; in this case the timetable which was the crucial issue was left out to be negotiated separately with individual operators. By doing this the LTA Board erred. The other operators or objectors were not privy to the phone conversation between the applicant and LTA. The rationale for holding hearings in public and allowing all parties to appear at once and be respectfully heard is to have transparency. This did not happen when the LTA allowed an important issue which is the timing of the trips to be "negotiated" separately. The LTA did not properly carry out the process of dealing with the application when the important issue of timetabling was dealt outside the Board meeting and "negotiated" in private with only some parties. The Board needed to deal with all the issues in the presence of all the parties. 

The Tribunal also noted from the decision letter that it approved trips to depart at 5.30 am and 6.30pm from Suva and Lautoka. It stated that KBL was to obtain a copy of the confirmed timetable from the LTA office in Lautoka. It is not clear from the decision letter whether the timetable for the trip was finalised by the Board and to be collected from LTA Office in Lautoka. The Tribunal has been informed in this matter that to date no timetable has been given out. This practice is unacceptable. All matters must be finalised and determined by the Board when it deals with an application. The Board must work logically and not leave important issues out of its decisions. 

The Tribunal has also noted that the decision letter does not state whether the service is stage or express. It only provides departure times and no arrival and stopping points are indicated. The Board needed to determine all the issues when the matter was before it. The Board whenever it sits must have all the resources and materials available to it to draw out and finalise the timetable and stage/express service for the applications that come before it. It should not be left out as a task for the staff of LTA. 

The timetable is an important component of the application. LTA is very aware that buses operate on a time table. A decision when approved must be given with a confirmed timetable. The practice of collection of a timetable later on from LTA must cease. The Tribunal seeks that LTA deal with all the issues in an application before it gives any decision. If an issue is unresolved the decision must not be delivered until the issue is resolved. The Tribunal is stating this because some issues are otherwise left unresolved indefinitely and never addressed. One example in the said matter is that no timetable was given out even until hearing of this matter. 

(e)	Load Checks –

The LTA normally carries out load check analysis for the routes for which an application is lodged. This is compiled as part of the report to the Chairman. In the said application the report is dated 23rd August 2014. The load checks are mainly carried out to assess the needs of the public and the desirability of ensuring services to passengers are maintained and enhanced, as per Regulation 5 (1) (a) of the Land Transport (Public Service Vehicles) Regulation 2000. 

In the Report prepared to the Chairman the Tribunal finds that LTA worked of the 2007 census. On the load checks and reports, the evidence of Ms. Kinivuwai was as follows: "loading reports with Regional Managers. Not provided to applicant and objectors. Page 378 of report is loading report. Combined for 2 days. Does not say where at Lautoka. LTA did the load survey. Usually load check at originating point to terminating point, bus stand to bus stand. Not sure how many bus services from Lautoka to Suva…. No loading of Pacific Service in report. 2 types of load survey. 1st travelling load survey and 2nd point check survey. Do not know what this survey is. The Board would not know. Morning departure loading of Pacific not before the Board."

The other evidence of Ms Kinivuwai was that the "Board considered the report… load checks presented to the Board. No analysis of the tables. Board looks at report and timetable. No analysis for Board. Report made no recommendations."

From the evidence of Ms Kinivuwai it is clear that to satisfy the requirements of Regulation 5 (1) (a) and (b) of the Land Transport (Public Service Vehicles) Regulation 2000, LTA carried out load check. This is a very important requirement in relation to buses. Proper load checks will reveal passenger loading and provide crucial data to determine whether additional services or public service demands exist. 

The Tribunal has perused the data and the information the LTA presented in its report to the Chairman and the Board. The report shows data on the population utilizing proposed service, population utilizing other modes of PSV, population utilizing own vehicles, LTA record of vehicles registered on the proposed route, and load check analysis. 

From the Tribunals perusal and reading of the report, the data and the tables the Tribunal found that report has no methodology. The report does not set out the method or process used in collating the data. The method of data collection is not clear and unexplained. The report lacks clarity and analysis. The report does not outline the process of data collection and how it was determined. The data is unreliable and irrelevant for a number of reasons. The Tribunal would like to the highlight a few of the reasons why it is stating that the data is unreliable and irrelevant:

(a)	The data does not indicate how the number of passengers were tallied and at what time. The data should have been for the separate days and with specific time. 

(b)	The report does not show the times the load surveys were conducted. The reason for this is the applications dealt with morning (6.00am) and afternoon trips (6.30pm). It would only be relevant that load surveys be carried out for those times. The report does not state what time or times the survey was carried out. The relevant survey would have been one that was for loading at 6am and 6.30pm at the Suva Bus Stand and Lautoka Bus Stand, respectively.

(c)	The report does not show the place where the surveys were carried out. Whether it was at the bus stand or any other place. 

(d)	The report does not indicate or give data for the loading of the current operators for the route around the time of the application, which is 6am and 6.30pm. It does not show the loading for Pacific Transport, Sunbeam and Sunset the current Suva/Lautoka Operators.

(e)	The loading of mini-buses, hire vehicles, taxis, carriers and private vehicles is not relevant to buses. The Board must only be given relevant information. The Board should not be concerned about the loading of other vehicles when they are dealing with applications for new buses routes.

(f)	The survey was conducted over two days, Tuesday 5th August and Friday 8th August. The survey should be over a period of time and based on a worked out methodology. 2 day survey in one month, without specific time being given is not acceptable for load checks for 6am and 6.30pm trips. Data is justifiable if it is for a period of time. For the bus industry data and specifically load survey must be for duration and not one off or two off. It must at the least be for a week. 

The Tribunal finds that the report submitted to the Board is irrelevant and lacks sufficient data and necessary analysis for the Board to make an informed decision on the applications that were before the Board.

The LTA needs to work with qualified and knowledgeable statisticians and work out a methodology and structure to collate and analyse data relevant to demographics, passengers using public service (Buses in this matter), and loading of buses for it to have data and information for use when applications are considered. The LTA in itself is a data and information collecting agency and it must have people qualified within its ranks to collate data and analyse the data. 

The LTA must work out proper and relevant methodology of collating and analysing data relevant to all applications that it deals with. Once the methodology and system is in place the same should be used for all similar applications. The data collated must be credibly collected. Once data is collected quality control mechanisms must be in place to verify the data. This will add credence to the data. The analysis of the data must be relevant to the application and thoroughly analysed and depicted as simple tables or in graphic form. 

The Tribunal finds that the data in the report to the Chairman and the Board is unacceptable for the reasons given herein. The raw data in the report is without methodology, it lacks credibility and analysis. Raw data without proper analysis is meaningless. The data needs to be explained and reasoned out. Lumping data and seeking that a Board make sense of it is unacceptable.

(f)	Management Reports –

It is the practice for LTA to prepare a report for the Board. From the Report in this matter the Tribunal notes that Report by the Management contains details about the application, proposed timetable, issues in relation to Regulation 5 and comments.

The Board generally relies on the Management report and the data in the report in determining the applications that come before the Board. The Report is crucial as it addresses Regulation 5, which provides what the Authority must take into account, in addition to other matters it thinks fit. It is therefore crucial that a relevant, fair and a transparent report is prepared for the Board. Materials in the report must be accurate. Data in the report must be properly collected and analysed. 

Once the Report is submitted it is incumbent upon the Board to scrutinise it carefully. The Board should whenever necessary ask the authors of the reports to verify and clarify issues. The report in this matter especially dealing with the data is lacking for reasons given herein. The Board could not have made an informed decision on the application before it on the data that was provided to it. The report to the Board did not provide credible, reliable data and any analysis of those data for the Board to make a decision whether a need existed for the route. The Tribunal has already highlighted the flaws in the absence of methodology and the manner of the data collection. 

The contents of the Management Reports need to be improved together with data collation and analysis.

(g)	Regulation 5 –
Regulation 5 of the Land Transport (Public Service) Regulation 2000 is the regulation dealing with PSV applications. It requires the LTA to take into account any matter it thinks fit or desirable to give effect to the provisions of the Act and in particular it must have regard to:

(a)	The needs of the public and the desirability of ensuring that services to passengers are maintained or enhanced;

(b)	The effect of the proposed service on other public service vehicle operators;

(c)	The suitability of the routes on which a service would be provided under the permit;

(d)	The suitability and fitness of the applicant to hold a permit;

(e)	The financial standing of the applicant;

(f)	Any evidence presented at a hearing conducted under Regulation 4;

(g)	The type of vehicle which the Applicant proposes to use on the service; and

(h)	The immigration status of the applicant.

The LTA when dealing with an application for issue, renewal or change in any condition of a permit must consider all of the above-listed issues in Regulation 5 (1).

The evidence of Ms Kinivuwai was that the issue of public interest was the paramount issue for the Board when the Board considered the said application. Mr Ramesh Prakash requested the Tribunal to shed some light on Regulation 5. 

The Tribunal as has gone over Regulation 5 carefully. This Regulation sets out the issues which the LTA needs to consider in each application for issuance, renewal or change in any condition of a permit. It also gives the LTA power to take into account any other matter it thinks fit or desirable to give effect to the Land Transport Act. The LTA while considering matters listed in Regulation 5 (1) (a) to (h) has wide powers to consider other relevant matters. The issue before the Tribunal is whether Public Interest is paramount. The Regulation lists 8 matters which the LTA must consider. It does not state that Public Interest is paramount. All 8 matters listed are important and should be considered together and in totality. To consider that public interest outweighs effect of the proposed service on other public service operators would be unreasonable and unfair. If it was the intention of the Legislators/Law makers to have one issue as paramount then it would have been explicitly stated in the Regulation. The Regulation 5 (1) does not state that any of the matters should be treated to be paramount and should be given more weight than another.

The LTA is required to consider all matters and when they consider it at their deliberations and their records should reflect that each was considered. The outcome of each issue should be recorded and the deliberations should be on all the matters listed in Regulation 5 (1) (a) to (h). The LTA should in coming to its decision analyse in totality all matters in Regulation 5 (1). The LTA's contention that one issue is paramount in Regulation 5 (1) is incorrect. 

In addition to considering Regulation 5 (1) (a) to (h) the LTA has powers to "vary the service as proposed in the application subject to conditions and restrictions if in its opinion such variation will not seriously affect any other holder of a permit." This power to vary is part of Regulation 5 (5). However, LTA must be satisfied that varying the service will not seriously affect any other holder of a permit. The LTA is under this Regulation to ensure that the variation of the application does not seriously affect any other holder of a permit. In the current matter no explanation or reasons in its decision have been given by the LTA whether the variation of time seriously affects any other holder of a permit. This is why the reasons for the decision are vital and always being emphasised by the Tribunal and the Courts. Given the wording of Regulation 5 (5) the LTA Tribunal does not read Regulation 5 (5) as making the interest of other permit holders as being paramount when LTA deals with applications under Regulation 5. 

The other important consideration for the LTA is Regulation 5 (6) which states that "no application for a permit or a change in a permit may be refused or varied by the Authority unless the Authority is satisfied that such action is likely to be in the interest of public service users." This Regulation allows the Authority upon being satisfied that a refusal or variation is in the public service users to do so. The Authority must be satisfied that such refusal or variation is likely to be in the interest of the public service users. In applying Regulation 5 (6) the Authority must have relevant information, data and necessary details to tilt the balance in the interest of public service users. If Regulation 5 (6) is applied and either the application is refused or varied the LTA must give reasons why it is doing so. As the Tribunal has stated that the under Regulation 5 (5) the interest of other permit holders is not the paramount consideration, the Tribunal also reads Regulation 5 (6) as not making the interest of public service vehicle users paramount to other considerations under Regulation 5 (1). 

The Sub-Regulations (5) and (6) are in the Regulations for a purpose while it gives LTA power to vary or refuse it seeks that LTA be considerate of the other holder of a permit and the interest of public service vehicle users. Any decision the LTA undertakes it must support its decisions with reasoning and provide the same to all parties. 

Having perused the report which collated the data for the Board the Tribunal has found that the data collected to address Regulation 5 issues lacked methodology. The data so collected was irrelevant and unreliable. The Tribunal therefore finds that the data that was before the Board was not in such order that the Board could have analysed the data and found that a need existed. The Board could not have come to a conclusion from the data without thorough analysis that a need existed. In any event if the Board relied on the data that was provided to it, it was all irrelevant and unreliable. For this reason the Board cannot rely on Regulation 5 (6) to move onto public service vehicle user's interest issues. 

Having perused all the documents, reports, submissions, hearing the witnesses the Tribunal finds that the LTA erred in failing to give reasons for its decision. It also erred when it made variations to the application and failed to give reasons for the variation to the application. The Tribunal further finds that the LTA erred in calling the operator separately to discuss and negotiate a time for the route. The LTA failed by moving out from a public hearing and resorting to private dealings. The LTA needed to deal with the application with all parties. 

Furthermore the reports prepared by the Management to the Chairman and the Board which provided analysis under Regulation 5 are lacking. It is not to the standard where it provides information to the Board to make an informed decision. The Tribunal has expressed in this judgment its views on the data that is contained in the report and finds it to be irrelevant and unreliable. The data was not properly and thoroughly analysed. Without any analysis the raw data makes no sense. The need for the service could not have been established. For these reasons the Tribunal finds that the decision cannot stand. It is set aside. In the interest of all parties the Tribunal seeks that the matter be dealt afresh and LTA is asked to see that it takes heed of the Tribunals observations contained herein in dealing with future applications. 

Orders

(a)	The Decision of the LTA conveyed to Kadar Buksh Limited conveyed vide letter dated 12th December 2014 approving new road route permits and granting trips departing Lautoka at 5.30am and 6.30pm and departing Suva at 5.30am and 6.30pm is set aside.

(b)	Respondent, LTA to pay all parties $1000.00 costs which is summarily assessed.

Chaitanya Lakshman
Land Transport Authority Tribunal

16th December 2015