MarkRGuildford wrote:
Further, there is no report that I can find of an appeal for the Royden case. When you say there is an Appeal you should show the citation.
C1/2002/2202
Neutral Citation Number: [2003] EWCA Civ 08
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Sir Christopher Bellamy QC,
sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand
London, WC2
Wednesday, 15 January 2003
B E F O R E:
LORD JUSTICE SEDLEY
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IN THE MATTER OF AN APPLICATION TO APPLY FOR JUDICIAL REVIEW
THE QUEEN
on the application of
MARK IAN ROYDEN
Claimant/Applicant
-v-
THE METROPOLITAN BOROUGH OF WIRRAL
Defendant/Respondent
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(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - -
MR R CLAYTON QC (instructed by Bindman & Partners, London WC1X 8QB) appeared on behalf of the Applicant
MISS S-J DAVIES (instructed by Sharpe Pritchard, London WC1V 6HG) appeared on behalf of the Respondent
- - - - - - -
J U D G M E N T
(As Approved by the Court)
- - - - - - -
Crown copyright©
JUDGMENT
1. LORD JUSTICE SEDLEY: This is an application for permission to appeal against a judgment of Sir Christopher Bellamy QC sitting as a judge of the Administrative Court. Sir Christopher refused to grant judicial review of the respondent local authority's decision to remove the existing limit imposed by it on the number of hackney carriage vehicle licences for their area, that is to say licences to ply for hire.
2. The statutory background is for once very simple. The old power under the Town Police Clauses Act of 1847 to set from time to time the number of local hackney carriage licences, a power which commonly made these licences coveted and valuable assets, was in effect stood on its head in 1985 by a statutory amendment which forbade any such limitation except where the local authority were satisfied that there was no significant demand for any more taxis. Even then it was a matter of discretion and not obligation to impose a limit. The aim, as Hodgson J said in R v Great Yarmouth Borough Council ex parte Sawyer (19 December 1986) was to allow market forces to take their course, leaving a only long-stop power in the hands of the local authority to prevent the market being flooded.
3. Before I turn to the merits of the present application for permission to appeal, I need to record that when the application came before me as a desk application, the claimant believed that the defendant was in the process of commissioning a fresh demand survey. Accordingly I adjourned this application into open court on notice, noting that any such survey might render an appeal pointless since it was likely to be directed to the taking of a fresh decision. Meanwhile, the local authority had undertaken to issue no further licences, and that I understand still to be the situation today. It turned out that the applicant claimant was mistaken and accordingly the application has come on as previously directed, in open court.
4. The applicant for permission to appeal represents himself and 91 members of his branch of the Transport and General Workers Union who, like him, hold hackney carriage licences in the Wirral. They are the great majority of the 101 holders of hackney carriage licences under the previous dispensation. They have an obvious and legitimate interest in opposing the opening up of the hackney carriage market in the Wirral. Other drivers who would obtain licences if they could, have an equal and opposite interest in the issue. The public too has an interest, both by virtue of the legislative regime and because it presumably wants to be able to find a taxi in the Wirral when it needs one.
5. The judge's conclusions, in the course of an extremely full and learned judgment, can be very briefly summarised. They were these. First, the agreed legitimate expectation of consultation between the council and the existing licensees has been honoured. Secondly, there had been no omission by the authority to take relevant matters into account in deciding, as it ultimately did in March 2002, to remove the numerical limit on its hackney carriage licences. Third, the claimant's hackney carriage licences was not a possession within the meaning of Article 1 of the First Protocol to the European Convention on Human Rights. Fourth, if it was, he had not in any relevant sense been deprived of it or of the peaceful enjoyment of it. Fifth, there had accordingly been no violation of Article 6 in removing the licences without a fair trial. Seventh, in any event the interference, if this were deprivation of property, would have been proportionate and therefore justified.
6. It was in the paragraphs running from 125-145 that Sir Christopher addressed, through the medium of the authorities cited to him by Mr Richard Clayton QC, what seems to me to be the critical question on this application. The reason why it is critical is this. Mr Clayton on appeal would wish to rerun only two of the issues canvassed below: first, that the failure of the local authority to construe section 37 of the Town Police Clauses Act, as amended, in conformity so far as possible with the Convention as required by section 3 of the Human Rights Act 1988, and consequently to take all relevant matters into account, flawed its decision; secondly, that there was a consequent breach of section 6 of the Human Rights Act in that the local authority as a public authority had failed to state expressly that the onus was on it to establish that the interference was proportionate, in particular by virtue of doing no more than was necessary to rectify market distortions. The second, I have to say, I have found by itself a recondite and difficult concept, but nothing I decide today hinges on that.
7. Mr Clayton in oral argument this morning accepted that neither of these two propositions is of any value unless it is also established that the decision of March 2002 will, if allowed to stand, deprive the claimant of a possession in at least one of the senses covered by Article 1 of the First Protocol. If it does not do this, then neither of the errors which Mr Clayton seeks to derive from the judgment has any life.
8. The senses in which the protocol uses "property" and " possessions" are teased out in paragraph 54 of the judgment of the Court of Human Rights in Tre Traktörer Aktiebolag v Sweden (1991) 13 EHHR 309. I will not read it out in full but the paragraph identifies three rules, that of peaceful enjoyment, that against deprivation of possessions and that of the state's right to control the use of property.
9. Let it be assumed, as Mr Clayton's skeleton argument cogently argues, that the judgment was wrong in concluding that a hackney carriage license is licences a possession. Nevertheless, the claimant and his colleagues still have the licences and will continue to have them for as long as they wish to keep them and have not become disqualified from holding them. What Mr ;Clayton submits is that the property or possession of which his client is being deprived, although manifestly not the licence, is the value of the licence, which is determined by the accompanying historic restriction of numbers. It is, he submits, no different in principle from the deprivation of property rights of a landowner who continues to own his land but finds that green fields around it have been the subject of a grant of planning permission to build on them which diminishes the value of his own land.
10. We have not looked at any authority as to whether such a situation does come within Article 1 of the First Protocol but, assuming that it does, it does not in my judgment answer the question which arises here. There may be a ;diminution in value in both cases. There is no doubt a diminution in the value of the claimant's licence if the numbers of licences are opened up. But that is a function, in the planning instance, of a real and physical alteration in the character of the property. The property will no longer a property be surrounded by green fields: it is going to be a property surrounded by buildings, and it may very well be that that is a true interference with somebody's possession. The fact that this is reflected in a diminution of its value may be a way of quantifying the interference, but it is not the interference.
11. Whether or not that is right, I am not satisfied that there is an arguable analogy between that situation and the licence which we are looking at in this case. What the drivers who bring this case are being deprived of is not, as I say, their licences but the oligopoly which a numerical restriction on the grant of other competing licences has historically given them. It is not in my view arguable -- and indeed the skeleton argument overlooked this and did not seek to argue -- that such an oligopoly, or the economic power which it confers, constitutes property or a possession of a kind which Article 1 of the First Protocol is designed to protect. The numerical limitation, despite Mr Clayton's submission to the contrary, is not an aspect or a condition or a part of the licence. It is an historical artefact of a statutory regime which has been out of existence, as it happens, for the better part of two decades.
12. In my view a restriction on the number of other hackney carriage licences cannot possibly be part of the claimant's property or a possession of his. I do not see, therefore, how a removal of that numerical restriction can be an interference, in any of the senses elaborated by the Court of Human Rights, with such property.
13. Absent a threatened property right, there is nothing for section 3 of the Human Rights Act to import into section 37 of the Town Police Clauses Act as amended; and nothing, either, with which to berate the local authority under section 6 of the Human Rights Act for non-compliance with the Convention.
14. It is for that specific reason that it seems to me that, even if one assumes all other things in Mr Clayton's favour, an appeal would have no real prospect of success. Accordingly, with an expression, as always, of gratitude for Mr Clayton's erudite and well-directed submissions, I refuse permission to appeal.
ORDER: Permission to appeal refused. Costs summarily assessed and awarded in the sum sought of £3,321.
(Order not part of approved judgment)