Taxi Driver Online

I knew someone would mention it....but I feel I'd be letting the side down if I didnt congratulate you on the proper use of the word 'taxis'

regards

CC

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

In this latest Berwick judgment Judge Symons was asked to clarify gladen, he did so by saying it was perfectly legal for a private hire operator in one area to use hackney carriages licensed in another area, that fact is not in dispute.

I have said time and time again that we can only base our judgement on how the law stands at this moment in time, no matter what position we take.

We can speculate all we want but until the Wrexham case goes to appeal then we are all in a catch 22 situation whereby you agree with Collins in Gladen or you don't.

Collins laid out the form relating to hackney carriages and gave in my opinion the right judgment that hackney carriages were not subject to private hire legislation except were defined in the act of 1976. Symonds agreedd with that.

There are some who believe that Collins version of not being subject to private hire legislation is limited to the area where the hackney carriage is licensed. Symonds said, that is not the case even though Maddox tried to convince him that it was.

Sooner or later the subject will be put to bed then we will all be a little wiser.

Regards

JD

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And possibly a little poorer.

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IDFIMH

(1) no person being the proprietor of any vehicle,

**not being a hackney carriage or London cab**

in respect of which a vehicle licence is in force, may use or permit the same to be used in a controlled district as a private hire vehicle without having for such a vehicle a current licence.

The draftsmans reference to a "London cab" is most significant because a London cab is not subject to a prescribed distance under the 1847 or 1976 acts. Yet parliament in its wisdom saw fit to mention it in the same breath as a hackney carriage licensed under the 1847 act.

The reason being is because both types of vehicle are already licensed therefore the purpose of the 1976 act was to license those vehicles used for private hire that were not licensed. Hence the **saving** in section 1 for hackney carriages and London cabs.

From time to time the case of Kingston upon Hull City Council v Wilson 1995 has been mentioned which was highlighted by me when I dissected the gladen ruling many moons ago. I offered the opinion that this case was a possible stumbling block to the gladen ruling which provoked some serious debate.

Earlier today I stated that wilson had been considered by Collins in Gladen and he chose to ignore it. You might find that strange considering the fact he makes no reference to it in his judgment.

So how do I know that he considered Wilson?

The Gladen judgment if nothing else is "well reasoned" and glaringly obvious that great care went into getting the law right once and for all. It is no coincidence that the judge who made that judgment is head of the administrative court and it would have been unwise of Symonds to try and disturb it. The reason I know why Collins was aware of the Wilson case is because he extensively made reference to the Benson case, which in turn made reference to the Wilson case. Therefore Collins would not have made his judgment without first familiarising himself with the Wilson case if indeed he wasn't already aware of its existance?

Symonds in my opinion was right to dismiss the Maddox argument of locality licensing and I fully expect the court of appeal to do the same but we shall see?

'London cab' means a vehicle which is a hackney carriage within the meaning of the Metropolitan Public Carriage Act 1869.

An operator licensed in a district commits no offence by accepting telephone bookings made by persons calling from outside the district nor by placing advertisements in publications circulating outside the district: Windsor and Maidenhead Royal Borough Council v Khan [1994]

For a private hire vehicle to collect a passenger within a controlled district in pursuance of a contract for hire made outside that district is not to operate the vehicle in the district for the purposes of the Local Government (Miscellaneous Provisions) Act 1976 s 46(1)(d): Britain v ABC Cars (Camberley) Ltd [1981] Braintree District Council v Howard [1993] Brentwood Borough Council v Gladen [2004] EWHC 2500 (Admin), [2005].

Regards

JD

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Copyright notice © The contents of this post are copyright of JD and are not to be reproduced outside of TDO without written permission.

I am yet to be convinced that the Gladen ruling was about anything other than a HC not having to have a PH operators license in order to accept a pre-booking.

And I seem to recall in that particular case the HC's were in the same area.

It clarified a case from Doncaster (from memory), and got rid of another (which I cant remember at this time).

regards

CC

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

Council to review taxi policy after legal ruling

BERWICK Borough Council's taxi licensing gravy train looks like it has ground to a halt following a historic ruling at the High Court in London.
A judge has stepped in to plug the flow of hundreds of licensed taxis swarming out of Berwick to play their trade across the rest of the country.

Tyneside taxi drivers were concerned that the flood of Berwick licensed taxis doing private hire work in their 'patch' was threatening their livelihoods.

Newcastle City Council went to the High Court, complaining that Berwick now has a staggering total of 672 licensed hackney carriages compared with 46 in spring 2006.

And the city council feared that Berwick's cheaper and easier licensing regime would make it a national licensing Mecca for the hackney carriage trade.

Berwick Borough Council received nearly £140,000 in taxi licensing income in 2007/8 and the court heard part of the 'financial surplus' was being put towards a motorised patrol to 'keep an eye' on taxis licensed in the town but working 65 miles away on Tyneside.

The demand from the hackney carriage trade was such that the borough council even planned to set up a network of testing stations for its remote fleet of taxis. However, these grandiose plans now look unlikely to come about after Judge Christopher Symons QC took action to cap the ever-growing numbers of Berwick taxis.

In doing so, the judge rejected Berwick's arguments that it is obliged by law to issue a hackney carriage licence to any applicant, so long as they and their vehicles are fit.

Commenting on the potentially 'undesirable consequences' of Berwick's stance, he said the council is having to carry out its enforcement powers from a distance and faces difficulty in keeping its licensed cabs under observation.

He said: "It seems to me that it must be desirable for an authority issuing licences to hackney carriages to be able to restrict the issuing of those licenses to proprietors and drivers which are intending to ply for hire in that authority's area."

He said the intention of the licensing system is that "it should operate in such a way that the authority licensing hackney carriages is the authority for the area in which those vehicles are generally used."

The judge added: "If the hackney carriages are used in areas remote from Berwick-upon-Tweed, enforcement will be very difficult and impracticable.

"It seems to be it is very difficult to exercise proper control over hackney carriages which are never, or rarely, used in the prescribed area.

"It is also undesirable for authorities to be faced with a proliferation of hackney carriages licensed outside the area in which they are being used and therefore not subject to the same conditions and bylaws as apply to those vehicles licensed in the area."

Judge Symons said he would leave it to the judgement and common sense of the borough council to decide how to react to his ruling, that it does have a 'discretion' to refuse to licence taxis if there is no 'unmet demand' for cabs in Berwick itself.

"While I cannot at the moment conceive of it being rational to grant a licence to those who intend to operate their hackney carriages remotely from Berwick-upon-Tweed, I am not prepared to say that it is bound to be unlawful," he concluded.

Newcastle City Council wrote to Berwick Borough Council in May last year, demanding a change in its stance on taxi licensing. But Berwick refused and the High Court dispute ensued.

As the borough council will cease to exist on March 31, 2009, it does not intend to take any action to prematurely terminate current hackney carriage licences.

This judgment has no direct impact on hackney carriage driver licences or private hire vehicle, driver or operator licences.

The decision addressed an issue that has never, in 161 years of taxi licensing, come before the court.

David Wilson, the borough council's licensing manager, said: Berwick Borough Council has always recognised that law evolves and accordingly is taking steps to ensure that it will probably the first council in the country to address the issues identified by the judge."

The council will now prepare a policy setting out how it proposes to deal with applications for licence renewals and applications for new licences by other people.

Once the council has a draft policy, consultation will take place with the general public, the taxi trade and other councils including Newcastle.

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

Sums it up quite well, apart from my view it has had no effect on hackney carriage vehicle licenses as well.

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IDFIMH

Still issuing and have no intention of stopping( nothing new there... was expected) it has been rumoured, that when the council's combine, they will be closer to Newcastle.... easier for their vans to go and check...... you just couldn't make it up....

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Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!

Till its sorted in the wrexham case old chap.....hopefully anyway

CC

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

And pigs will fly

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Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!

And pigs will fly[/quote]

Yes, they have helicopters down there

CC

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

A finger of fudge

I am sure everyone is now aware of the decision in the Berwick case, the obvious word to point out is ‘decision’, if the Berwick ‘decision’ was a piece of confectionary from the 1970’s, it would, without out a doubt, be a fudge and a fudge that will put pressure on whichever judge resides over the forthcoming Wrexham case.

Rather than give details of the case, I intend to highlight one specific point, namely section 16 of the 1985 transport act.

Section 16 states;

“the grant of a hackney carriage licence may be refused for the purposes 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 (within the area to which the licence would apply) which is unmet.”

It is reasonable to suggest that section 16 has created a plethora of court cases over the years.

Prior to 1985, local authorities had discretion to refuse to issue hackney carriage licenses, after 1985 they did as well, but had to be satisfied there was ‘no significant unmet demand’ within the area or the fact that the applicant wasn’t fit and proper.

The case therefore again raises the question as to whether or not a local authority can refuse to issue a hackney carriage license. What the Judge has basically said is that a council has the mechanism to refuse a license on the basis that it won’t be worked in the area, again, this is contrary to previous thinking, and seemingly contrary to various Judges remarks.

The immediate example is the Wirral case the following has been pointed to me by our old friends at taxi driver online;

95. The claimant does not contest that, since 1985, licensing authorities have not been empowered to limit the number of hackney carriage vehicle licences in their area unless satisfied that there is no unmet demand. In R v Great Yarmouth Borough Council ex parte Sawyer, cited above, the chairman of tile local taxi proprietors association challenged the decision of the licensing authority to de-restrict the number of hackney carriages operating in the Borough. Ill rejecting the application Woolf LJ (as he then was) said at p. 298 F-R

“Clearly, the policy of the Transport Act 1985 is to restrict the ability of the licensing authority to refuse a licence for the purposes of limiting the number of hackney carriages, except in circumstances where the authority is satisfied that there is no significant demand for the services of the hackney carriages which is unmet. In the words of the judge, it is to remove restraints and allow market forces to take their course in a way which did not exist before section 16 of tile Transport Act 1985 came into effect. It is, however, to be noted that not with-standing the amending provisions of section 16, the licensing authority still retains a discretion. Its discretion is only limited where the refusal is 'for the purpose of limiting the number of hackney carriages.'

If the grounds for refusing the grant of a licence are for a different purpose, then, as I understand the proper interpretation of section 16, it does not restrict the discretion which the licensing authority had prior to the amendment.”

Whilst the reading of section 16 by the good judge is correct, do you notice the little waiver in the final sentence? (You should, its in bold and underlined in italics)

In Maud vs. Castle Point, the following has been sent my way;

[4] Section 16 of the Transport Act 1985 introduced an important amendment. There is no dispute that its purpose was to allow market forces to play a larger role in the taxi business. Section 16 reads as follows:

“The provisions of the Town Police Clauses Act 1847 with respect to hackney carriages, as incorporated in an enactment (whenever passed), shall have effect ‑

(a) as if in Section 37, the words 'such number of' and 'as they think fit' were omitted; and

(b) as if they provided that the grant of a licence may be refused, 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 (within the area to which the licence would apply) which is unmet.”

[5] Until that provision took effect a licensing authority had a discretion which was largely unfettered as to the number of licences it granted or refused, subject only to the normal administrative law principles. Section 16 clearly limited that discretion. The judge in the court below summarised the legal position thus produced in a way which seems to me to be accurate when he said at para 6 of the judgment:

“(a) before a local authority can refuse an application for a vehicle licence in order to limit the number of licensed taxis, they must be satisfied that there is no significant demand for the services of taxis, within the area to which the licence would apply, which is unmet;

(b) if the local authority are thus satisfied, a discretion, as opposed to an obligation, arises to refuse the grant of a licence; but

(c) if the local authority are not so satisfied, they cannot refuse to grant a licence for the purpose of limiting the number of licensed taxis and are thus obliged to grant it.”

[6] Finally on this survey of the legislative provisions it is necessary to refer to the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976 Act”). An authority is empowered by that Act to impose conditions on a licence granted by it under the 1847 Act. That power is to be found in s 47 (1) of the 1976 Act. That provides

“A district council may attach to the grant of a licence of a hackney carriage under the Act of 1847 such conditions as the district council may consider reasonably necessary.”

Again, the point made in bold states section 16 limits discretion, it doesn’t say gives no discretion.

Furthermore, I am reliably informed the following is stated in Knowsley vs. McGuire & Others;

The effect of the amendment to sub-paragraph (b) is to transform the permissive "may" into a partial **mandatory** "must". Unless the Authority is "satisfied that there is no significant demand . . . which is unmet . . . it is obliged to issue a licence to an otherwise suitable applicant. Of particular significance in the present case is that they must be satisfied that there is no significant demand "for the services of hackney carriages".

I could go on, but the point is, the consistent line of thinking from virtually all judges, in the all too many cases revolving around section 16, are all broadly of the same opinion, if there is no significant unmet demand in an area, a local authority must issue a license. But there does appear to be a waiver, please note what I’ve highlighted in bold and underwritten.

Okay, returning to the Berwick Judgement and section 16, the judge makes only a passing reference to it, basically stating Newcastle City Council use section 16 to limit taxis and Berwick do not.

I am left slightly perplexed by this, you see if the Judge in the Berwick case was going to make a specific point regarding section 16, I would have thought he would have, you see the following is stated in section 16;

‘may be refused for the purposes of limiting’

If what the judge is saying, is that an application can be refused on grounds other than ‘for the purpose of limiting’ and i.e. if the vehicle which was to be licensed was going to be used in another area. Then why didn’t he actually state that?

Am I reading this totally wrong? Are what the judges saying in the above cases that a council can refuse to issue a license if there’s an unmet demand for reasons other than for the purposes of limiting?

If the judges are saying this, then what are the reasons? Presumably not supplying a correct type of vehicle to be licensed maybe one, not being fit and proper maybe another.....but what about not using it in your prescribed area?

I am no friend of the Berwick situation, I see it as going against the principles of local licensing, but the Judgement is open to all manner of speculation by the judges seeming refusal to make a decision either way.

I will make reference to the Gladen case, I sincerely believe it has been misinterpreted, I have spent probably too many hours arguing this, however, in my view the following was asked and answered;

35. The district judge posed this question for the opinion of the High Court: "Whether it is necessary to hold a licence under section 55 of the Local Government (Miscellaneous Provisions) Act 1976, in an area where that Act is in force, to operate a hackney carriage duly licensed as such under the Town Police Clauses Act 1847 as a private hire vehicle."

36. The answer to that question is: no. Accordingly, I would dismiss this appeal.

As many of you will know, this case was a ‘win’ for the taxi trade, and we all owe Mr. Gladen gratitude, as we do with Bryan Rowland who was extremely supportive to Mr Gladen when many others closer to Brentwood weren’t.

The case put to bed the fact that Hackney Carriages could do Private Hire work and didn’t need a Private Hire operators license, now even accepting my view of the Gladen case (which is obviously right), if we are suggesting a HC must be physically within its own area when accepting a pre-booking (as per DFT advice which wasn’t mentioned at all in the Berwick case), what will happen tomorrow morning if one of you is hired to another area and your mobile phone goes requesting a cab from your out of town position to another area? Are you breaking the law by accepting?

Many thanks to taxi driver online for helping me with the various cited cases.

Berwick decision? You’re having a laugh.

reproduced courtesy of taxitalk magazine....many thank to those of you on TDO for helping with the court cases.

CC

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

I've been meaning to compliment you on that article, I suppose now is a good a time as any.

The article is fair and balanced which most people will appreciate and in my opinion is probably the best article you have ever written for any magazine. I'm a great fan of sticking to the facts and in this instance that is exactly what you did. I hope your readers appreciate the unbiased presentation.

Regards

JD

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Copyright notice © The contents of this post are copyright of JD and are not to be reproduced outside of TDO without written permission.

thank you JD.....the site and your good self played no small role in compiling the article.

regards

CC

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

Commenting on the Berwick document for a change of hackney carriage policy and their supposition that they have discretion to refuse licenses if they do not like the way an applicant intends to exercise their lawful right in the way they prefer to conduct their business.

Deciding on the fit and proper status of an applicant is not restricted to just the character of the person it could also include medical fitness and whether or not the license holder in the opinion of the decision making body whether that be councillors or justices of the peace, will conduct his business lawfully?

Such a body has no power in the exercise of their jurisdiction to attempt to regulate the terms upon which the applicant is to conduct his business, if those terms do not in any proper sense affect his fitness to hold a license

In general terms of “fit and proper” it has been established that matters admissible for consideration might amount to the health of the applicant, his temper and disposition.

Some may not be aware but it is already established in case law that the discretion given to such a body in the selection of “fit and proper persons” to hold licenses, no matter what those licenses might be, does not include the power to dictate the terms on which the applicant is to conduct his business, if as I have already stated “those terms do not in any proper sense affect his fitness to hold the licence, and to treat the applicant as an unfit person to enjoy the licence because he refuses or is unable to accept those terms.”

Therefore a council cannot refuse a fit and proper person a license on the grounds of where they might wish to conduct private hire business.

Regards

JD

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Copyright notice © The contents of this post are copyright of JD and are not to be reproduced outside of TDO without written permission.