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PostPosted: Tue Jun 29, 2010 10:15 pm 
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I thought JD must have posted this one......couldnt find it, so here it is.....its about deferment!


QUEEN v. NORTH DEVON DISTRICT COUNCIL Ex parte NORTH DEVON HACKNEY CARRIAGE OWNERS ASSOCIATION [1999]

EWHC Admin 503 (26th May, 1999)

IN THE HIGH COURT OF JUSTICE CO/3039/98

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Royal Courts of Justice
The Strand
London

Wednesday 26 May 1999

B e f o r e:

MR JUSTICE MOSES

THE QUEEN

- v -

NORTH DEVON DISTRICT COUNCIL
Ex parte NORTH DEVON HACKNEY CARRIAGE OWNERS ASSOCIATION

Computer Aided Transcription by Smith Bernal, 180 Fleet Street, London EC4

Telephone No: 0171-421 4040 (Official Shorthand Writers to the Court)

_______________


MR J PLATTS-MILLS QC and MS L BROOKS (instructed by Messrs Toller Beattie, Devon EX31 1TA) appeared on behalf of THE APPLICANT

MR P WADSLEY (instructed by Legal Services Department, North Devon District Council) appeared on behalf of THE RESPONDENT

J U D G M E N T (As Approved by the Court)

Wednesday 26 May 1999

1. MR JUSTICE MOSES: This is an application for permission to challenge a decision of the North Devon District Council to de-regulate the provision of Hackney Carriages licensed to operate within their area. That decision was made on 4 March 1998.

2. The statutory framework in which that de-regulation (or as it is called in the vernacular of taxi-licensing “delimitation”) is contained within section 37 of the Town Police Clauses Act 1847, as amended by section 16 of the Transport Act of 1985. This provides:

“A commission may from time to time licence to ply for hire hackney carriages and may refuse to grant a licence for the purpose of limiting the number of hackney carriages in respect of which licences are granted, if, but only if, the person authorised to grant licences is satisfied that there is no significant demand for the services of hackney carriages .... which is unmet.”

3. The statutory provisions are important. It means that a licensing authority has no power to refuse to grant a licence unless it is satisfied that there is no significant demand which is unmet. Absent material upon which it could be satisfied, it would therefore be unlawful for a council to refuse a licence.

4. This dispute arises out of the difficult position in which the North Devon Hackney Carriage Owners Association has been placed as a result of the amendment to the 1847 Act by the Transport Act 1985. Many councils have proceeded on the basis of the pre-1986 situation. Prior to the coming into force of the 1985 Act, the local council licensing authority would form its own view so as to enable taxi drivers to earn a decent living and to accumulate capital representing the value of their business. The licensing authorities were accustomed to limiting the number of licences granted. Taxi drivers were happy as a result to know that, by dint of their hard work over the years, building up their clientele and relationships with customers (as is common particularly in remote country areas) they would have something either to pass on to their children, or to be able to sell.

5. But the 1985 Act changed all that because, absent any basis for saying that there was no significant demand which was unmet, anybody who came along who was qualified to drive a taxi could apply for a licence and the licensing authority would have no power to refuse it. However, councils continued to limit the amount of licences and did not conduct a survey to ascertain whether there was any significant demand which was unmet.

6. In reaching those conclusions as to the law, I am guided by the decision of the Court of Appeal in R v Great Yarmouth Borough Council, ex parte Sawyer [1989] RTR 297. The nub of the decision can be seen in the judgment of Bingham LJ (as he then was) at page 303J:

“A council does not need a reason under the Act to adopt a policy of de-restriction. Therefore, a decision to de-restrict is very hard to challenge on grounds of irrationality, although, no doubt, that could be done if the decision was made for obviously unsustainable reasons.”

7. Dillon LJ observed at 304C:

“They could not decide to restrict the number unless they were satisfied that there was no significant unmet demand. They were not bound to make further inquiries or have surveys conducted in order to see more clearly whether there was or was not unmet demand.”

8. In this case the council had a policy of restricting the number of licences. Their policy was questioned back in 1997 when someone applied for a licence. The applicant for that licence challenged the council when they said that he would have to go on a waiting list, saying in a letter dated 28 October 1997:

“It is unfair practice for the council to limit the number of plates available.”

9. That applicant might have gone further by saying that it was unlawful to do so unless the council could be satisfied that there was no significant demand which was not met. The council as a result appreciated the difficulty it was in. If they refused a licence to that applicant and then there was an appeal, for example, to the Crown Court, they would have no basis for being able to assert that it was right to refuse the licence. Accordingly, in January they resolved to reconsider that policy and proposed to delimit -- in other words, de-restrict -- the number of licences, but not before consulting the trade and they considered the obtaining of a survey.

10. There then followed a discussion between the council and the holders of taxi cab licences as to who would pay for that. The council proposed to charge for the obtaining of a survey (which would cost in the region of £8,000) by imposing an increase on the licence. The holders of such licences were happy to have a survey and indeed pay for it, provided various questions were answered. An officer of the council, a Mr Pratt, answered some, but by no means all, of the questions.

11. There was a subcommittee meeting on 4 March 1998 at which it was resolved to recommend that there be de-restriction from 1 April 1998. The council had been, in my judgment correctly, advised that in the absence of clear evidence, there was no significant unmet demand for Hackney Carriages in North Devon. The council does not have a legal power to limit the number of Hackney Carriage vehicle licences issued (see the report of Mr Pratt for the Licensing Subcommittee of

12. 4 March). Accordingly, it was resolved by the licensing subcommittee that the number of Hackney Carriage Licences as from 1 April 1998 be de-limited. This was notified on 10 March to the Hackney Carriage licence holders.

13. In the letter notifying them of the conclusion of the subcommittee it was said:

“The licensing subcommittee decided not to conduct a survey. However, if such a survey was commissioned by the trade, the subcommittee will review its legal position based on the results of the survey.”

14. The subcommittee were advised on 1 April 1998 that the Hackney Carriage Owners Association would support a survey and accept that the cost of any such survey should be met from increased licence fees. It will be noted that the council had already resolved to de-restrict the number of licences. However, in my judgment, for the reasons I have given, as a matter of law they were bound to do so in the absence of any survey. Complaint is made in these proceedings by Mr Platts-Mills QC, on behalf of the licence holders, that the council should not have adopted a policy of de-restriction until a survey had been obtained, bearing in mind the effect it would have on the livelihood of existing licence holders and the value of their licences. But in my judgment it is not arguable to the contrary that the law required the council to de-restrict in the absence of any evidence demonstrating that there was no significant demand which was not met. It is not, as a result of the amendments to the law in 1985, open to licence holders to complain that their situation is being damaged and that they have entrenched rights to preserve the value of their licences. They may be able to do so, but only if it emerges on evidence or material that persuades the council that the free competition, which the 1985 Act clearly envisages shall prevail, would not be necessary because significant demands were not being met.

15. The matter continued with a meeting of the licensing subcommittee on 22 April, at which there was a representative of the Hackney Carriage Owners Association and at which it was recommended that a survey into unmet demand be obtained and but in the meantime, the authority would continue to issue Hackney Carriage licences.

16. On 27 May there was a further meeting at which representatives of the Association were present. They were allowed to address the meeting but, again, it was decided to maintain the decision to de-restrict the number of licences. Indeed, the representative of the Hackney Carriage Owners Association was there, but did not feel that he had sufficient support to be able to address the meeting on that occasion.

17. The council contend that the decision of 4 March should have been challenged promptly, and in any event within three months. The applicants contend that they still hoped that the council would change their minds and commission a survey before deciding to de-restrict. It is said by Mr Platts-Mills QC that this discussion continued up until July and that these proceedings were issued in August. In my judgment, it is quite impossible to contend that the Hackney Carriage Owners Association licences were unaware of the position back in March. Certainly in April they knew that, without a survey, the policy of de-restricting the number of licenses would start and would continue.

18. The policy was made clear at a meeting at which a representative attended. No action was taken, as I have said, until August. In my judgment, there was delay; the decision which they seek to impugn was not challenged until well after the three-month period and no satisfactory excuse has been put forward. It is vital that these challenges are brought speedily. Often it will be too late to wait even the three months, which is the outside limit. The supervisory jurisdiction which this court exercises over administrative decisions, which is extremely important for the application of Mr Taylor and others, can only properly be pursued by speedy challenge, otherwise events will have changed, the matter will have become stale and that co-operation which is needed between administrators, courts and those affected by decisions is fatally undermined.

19. I refuse leave on the ground of delay. But, lest this should seem a technical basis upon which to refuse leave, let me make it clear, as I hope I have already indicated in this perhaps over- lengthy judgment, there was no basis for the challenge in any event. There was no basis for saying that there was anything unlawful in the attitude of the council that, in the absence of evidence of a significant unmet demand, they had no basis for restricting the number of licences granted. On the contrary, in my judgment, it would have been unlawful had they done so and as soon as that was brought to their attention, they took steps to comply with the law.

20. For those reasons this application for permission is dismissed.

21. MR WADSLEY: My Lord, I ask for the council’s costs in those circumstances.

22. MR JUSTICE MOSES: You did not have to be here.

23. MR WADSLEY: We did not have to be here. The applicant asked for this application to be dealt with in open court and told us of the date.

24. MR JUSTICE MOSES: Effectively it has been like a full hearing. If it had been a full hearing, it would not have taken any longer.

25. MR PLATTS-MILLS QC: This still is an application. Costs orders are not usual in ex parte proceedings.

26. MR JUSTICE MOSES: You did ask them to be here and the matter was put off so they could be.

27. MR PLATTS-MILLS QC: As a matter of courtesy we asked them to be here. That does not amount to an invitation. Costs orders are not usual on ex parte proceedings. My learned friend’s graciousness in appearing does not entitle him to costs.

28. MR JUSTICE MOSES: I will make no order as to costs. We never sorted out who were the appropriate applicants. I suppose it is Mr Taylor and all those listed?

29. MR PLATTS-MILLS QC: My Lord, yes.

30. MR JUSTICE MOSES: If you renew the application in the Court of Appeal, you had better sort it out beforehand. You may get a less than benign judge.

31. MR WADSLEY: I have no objection for it be Mr Taylor and those listed.

32. MR JUSTICE MOSES: I will assume that is what the application and my order will reflect ( end of sentence inaudible ).

33. MR PLATTS-MILLS QC: I am much obliged.

34. MR JUSTICE MOSES: Thank you both very much.

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin


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