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Regina v Middlesbrough District Council, Ex parte I. J. H. Cameron (Holdings) Ltd
(1991)

Deferring decision is not making one

QUEEN’S BENCH DIVISION

Published 19 November, 1991


Before Mr Justice Popplewell


Judgment November 13, 1991

A decision by a local authority to defer, for a matter of a few weeks, its decision whether or not to grant hackney carriage licences pending a survey to determine whether there was an unmet demand for hackney carriages in the area was not a refusal to grant the licences and was not in breach of the local authority’s duties under section 16 of the Transport Act 1985.

Mr Justice Popplewell so held in the Queen’s Bench Division in dismissing an application by I. J. H. Cameron (Holdings) Ltd for judicial review of a decision by Middlesbrough District Council to refuse to grant a hackney carriage licence by purporting to defer the decision pending a survey to ascertain whether there was an unmet demand for hackney carriages in the area.

Section 16 provides:
“(b) ... the grant of a licence may be refused, for the purposes of limiting the number of hackney carriages ... if, but only if, the person authorised to grant licences is satisfied that there is no significant demand for the services of hackney carriages (within the area to which the licence would apply) which is unmet.”

Mr Manjit Gill for the applicant; Mr Stephen Hockman, QC, for the local authority.

MR JUSTICE POPPLEWELL
said that under section 16 a council had to ascertain whether there was a demand for more hackney carriages. If it failed to carry out a proper enquiry it would be liable to find itself the subject of judicial review for failing to be properly satisfied that there was no unmet demand.

As people could apply for licences at any time of the year there might be no period when the council could carry out an enquiry at a time when no applications had been made.

The council argued that a deferment was not a refusal but was neutral in the same way as an adjournment by a court was neutral. Section 16 dealt with a refusal to grant a licence and did not require a council to grant a licence unless it was satisfied there was an unmet demand.

If it were not for the decision of Mr Justice Nolan in R v Reading Borough Council, Ex parte Egan (The Times June 12, 1987) his Lordship would have had no doubt that a deferment for a short period to carry out a proper enquiry into need could not be called a refusal. As it was he found himself in the invidious position of having to disagree with that decision.

A refusal meant saying “No”, not saying “We are going to consider your case in a short time after making the requisite enquiries”.

Solicitors: Jacobsens for Levinsons Donnelly, Hartlepool; Lee Bolton & Lee for Mr C. Crossman, Middlesbrough.

Note the few weeks, not months, not years.

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IDFIMH

Yes, very interesting all thats needed is a test case with all the ingredients.

Regards

JD

The problem with Popplewell's assumption is that section 16 does not state a council has to ascertain whether there is a demand for more hackney carriages. Section 16 states that in order to refuse a license a council must be able to show that there is no significant demand for the services of Hackney carriages.

As the Scottish courts ruled in Coyle and Dundee there is no provision in section 16 for a deferment while a survey is undertaken but Popplewell in his wisdom decided that a deferment for a few weeks was acceptable. However, the circumstances of the Cameron case are not straightforward and perhaps it is only a matter of time before the issue of deferment combined with the shelf life of a survey is properly addressed?

Regards

JD

Mr Button is of the opinion (via his book) that a deferment is a refusal. And for once I actually agree with him.

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IDFIMH

Lord Denning is of the same opinion, I think Cameron cited that but Middlesborough cited a passage with a different point of view and the rest is history.

Lord Denning said "deferment is tantamount to a refusal and should be treated as such". I agree in this particular case because there is no provision in section 16 for a deferment. The Scottish courts buried that idea once and for all, I think it is just a matter of time before it is buried here too?

Regards

JD