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Does anyone know if this applicant got his proprietors license?
R v Brighton Borough Council and another Ex parte Ashdown
Queen's Bench Division (Crown Office List)
HEARING-DATES: 3 July 1990
3 July 1990
COUNSEL:
J Watt-Pringle for the Applicant; J Tanzer for the First Respondent; the Second Respondent did not appear and was not represented
PANEL: Glidewell LJ, Otton J
JUDGMENTBY-1: GLIDEWELL LJ
JUDGMENT-1:
GLIDEWELL LJ: The applicant Mr John Ralph Ashdown was formerly a taxicab driver, or, to use the old-fashioned phrase which is still to be found in the statutes, a hackney carriage driver. He lives in Brighton. He is now aged 55. The facts of this matter are not in dispute. Brighton Borough Council is responsible for the licensing of hackney carriages -- that is say taxis as most of us know them -- and hackney carriage drivers in the borough. The Borough Council has a policy of restricting the number of hackney carriage licences for cabs in the borough, but it permits the transfer of licences on the death or retirement of the holder of a licence. Such licences, therefore, have a considerable value and are freely sold for those values. Indeed we are told that the values of licences often run into five figures.
In addition, from time to time, the Borough Council resolve to grant further licences. As it is entitled to do as a matter of law, it has adopted a general policy for the grant of such further licences. It has a waiting list for further licences and the policy covers also the inclusion of names on the waiting list. That policy, although it is a fetter on the Borough Council's discretion, is lawful so long as the Council (in any individual case) is willing to consider making an exception. The Council's case here is that in the case of Mr Ashdown it has considered making an exception and it has shown that it has sometimes been willing to make exceptions.
The present conditions for inclusion on the hackney carriage waiting list were determined by the Council to take effect from 1st January 1982. They are set out in a document which is before us and they include two conditions which are relevant. Number 2 reads:
"To be eligible to apply an applicant will have to fulfil the following requirements:
(a) be over 21 years of age;
(b) have held a Brighton hackney carriage or private hire drivers' licence for at least 12 months prior to the date of application;
(c) reside within 5 miles of the borough boundary and be working full-time in the hackney carriage or private hire trades based in Brighton at the time of the application."
Number 14 reads:
"When a hackney carriage vehicle licence is made available it will be allocated at the entire discretion of the Council to a person named on the effective waiting list after having regard to the applicant's full-time record of working as a driver of a hackney carriage and/or private hire vehicles in Brighton. This will be subject to compliance with the following conditions:
(a) the applicant must hold a current Brighton licence to drive hackney carriages."
There is an age condition which does not apply here.
(b) the applicant must at that time be working full-time in the hackney carriage or private hire trade in Brighton."
Clearly Mr Ashdown satisfied the conditions of being over 21 years of age and residing within five miles of the borough boundary because he lived in the borough. For many years he also satisfied the condition that he held a hackney carriage or private hire drivers' licence for at least 12 months prior to the date of his application because he was employed in the taxi trade in Brighton from 1975 onwards, first, as a driver of a private hire vehicle and then as a driver of hackney carriages for which he obtained a hackney carriage driver's licence. In 1975 he placed his name on the waiting list. Theoretically the waiting list is an annual list but in practice it seems that the previous year's list is carried over to the next year and as licences are granted from time to time (and for other reasons no doubt) an applicant those name is on the waiting list finds that it rises towards the top of the list.
We did have some discussion about exactly what the effect was of being on the waiting list for some years but it was agreed between counsel, as I understand it, that while the council would be perfectly entitled to choose the name of somebody who was at the bottom of the waiting list, in practice they normally take (when they have some licences to allocate) the names of those who are at the top of the waiting list, unless there is some valid reason for excluding a particular applicant. Thus in formal terms those at the top of the waiting list will have a legitimate expectation that when there are more licences to be granted they will receive them.
Mr Ashdown was in fact either at, or coming towards, the top of the list when most unfortunately on 28th June 1984 he suffered a heart attack -- in medical terms, a myocardial infarction. Hackney carriage drivers' licences run from 1st April to 31st March. On the 31st March 1985 his then current hackney carriage driver's licence expired. Since he was not fit to drive a hackney carriage after his heart attack that licence was not renewed. He hoped, however, to recover his health sufficiently to renew his driver's licence and thus to be considered again for a hackney carriage licence. Again most unfortunately, from his point of view, while he was in that state of unfitness, early in 1986 the Borough Council did resolve to add quite considerably to the number of hackney carriage licences in the Borough. Early in that year some 49 new hackney carriage licences were issued to other persons. As I have said, Mr Ashdown was still unfit so he was not the holder of a driver's licence. None of these licences was issued to him.
However, on 7th July 1986, following a medical report, the Borough Council re-issued a hackney carriage drivers' licence to Mr Ashdown and he recommenced employment with the benefit of that licence. That only, however, went on for just over three weeks because on 1st August 1988 he suffered a further mild heart attack. As a result, he says in his affidavit in support of this application in paragraph 7:
"This setback seemed to indicate that my hope and expectation of an almost full recovery had perhaps been too optimistic; and I accepted that it was unlikely that I would ever become sufficiently fit to resume full-time work as a taxi driver. I nevertheless hoped that, by virtue of my long involvement in the trade, my unblemished record and the experience which I could bring to bear, the Borough Council would feel able to grant me a plate."
I should have said that "a plate" is the term commonly used in the trade for a hackney carriage vehicle licence. It has at least the great merit of brevity as a description as well as being actually descriptive of what is issued.
The unfortunate Mr Ashdown, accepting no doubt most unhappily that he was unlikely ever again to be fit to drive a hackney carriage, has resigned himself from that occupation and has been unemployed ever since. The effect of that was that his name was again removed from the hackney carriage licence waiting list.
Despite this he did make further applications for a plate, one in 1987 and a second in 1988. Both were refused. The second was refused on 29th November 1988 by the Borough Council. There is no doubt that the relevant committee gave full and proper consideration to that application. We have, as had the Crown Court to which I shall refer in a moment, not merely the resolution of the committee but also the documents which were put before the committee with the advice of the Borough Secretary. The committee's resolution was that Mr Ashdown's application for a hackney carriage vehicle licence be refused on the grounds that he did not hold a current licence to drive a hackney carriage and he was therefore not entitiled to be placed on the waiting list. There should be no exception made to the conditions relating to the waiting list in the case of Mr Ashdown.
It is obvious from what I have said that Mr Ashdown did not satisfy either condition 2, 14(a) or 14(b). Nevertheless the Council was considering properly whether to make an exception. In its discretion it could have done so but it decided not to do so.
On 31st January 1989 Mr Ashdown appealed to the Crown Court against that decision. The statutory route by which one arrives at a right to appeal is somewhat complex. It goes via the Public Health Act 1875 (section 171) to the Public Health Act Amendment Act 1890, both of which incorporate the statute which primarily governs the granting of these licences (the Town Police Clauses Act 1847, section 37).
It is agreed by counsel and accepted that the right of appeal is for an appeal by way of rehearing, which means that the Crown Court was in a position to exercise the same discretion as the Borough Counsel; in other words, if the Crown Court had thought right, it could have reached a different decision from the Borough Council on the facts and the material presented to it. However, the Crown Court dismissed the appeal.
We are told that at the hearing, in dismissisng the appeal, His Honour Judge Troup, who heard the appeal with magistrates, said, "Quite clearly everything that could be said has been said. We are unanimously of the view that the decision of Brighton Borough Council to refuse was correct. We dismiss the appeal." Solicitors acting for Mr Ashdown, wishing to take the present proceedings or to consider whether to take them, took the view that was not a sufficient statement of reasons and they asked that the judge should be invited to give more extensive reasons in writing. He responded to that request and Mr Ashdown's solicitors received from the Crown Court a letter of 19th October 1989 which said:
"His Honour is prepared in the circumstances to give the courts' reasons for dismissing the appeal and they are set out as follows:-
'We were were invited to hear the matter afresh, we did so. In considering the appeal we were impressed by the submission made by Mr Tanzer, counsel for the respondents, namely:-
1. That a Council shall not in the normal way exercise its discretion to grant a licence in favour of a driver who is unfit, through or after illness, to drive.
2. That licences should naturally be granted to persons who are themselves in a position to use them.
3. That there is no current demand for taxis in Brighton.
In all the circumstances we were unanimous in coming to the conclusion that the Brighton Council was correct in refusing a licence'."
Mr Ashdown, on 22nd December 1989, made an application for leave to move for judicial review, both of the decision of the Borough Council of 29th November 1988 and of the decision of the Crown Court of 29th September 1989. Kennedy J refused leave to challenge the decision of the Borough Council. For my part, I respectfully think he was right to do so because it seems to me that the Borough Council acted entirely properly. They considered the application. They were willing to consider whether to make an exception. They were within their rights in refusing to do so. Their decision as such cannot, in my view, be faulted. However, Kennedy J granted leave to make an application for an order of certiorari to quash the decision of the Crown Court, which is the matter which is before us.
Before I say anything more about the submissions which have been made to us, I must refer to the statutory scheme for the grant of these licences. It is almost archaic now because, as I have said, it stems from the Town Police Clauses Act 1847, one of the clutch of clauses Acts which occupied Parliament in the middle period of the 1840s. By section 37, missing out inessential words, the local authority is empowered to grant hackney carriage licences. The words which matter are contained in a much more modern statute (section 16 of the Transport Act 1985) which amends section 37 of the 1847 Act, in particular by providing that that provision:
". . .shall have effect . . . (b) as if (it) provided that the grant of a licence may be refused, for the purpose of limiting the number of hackney carriages in repect 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."
The council, in other words, is entitled to conclude that if there is no significant unmet demand for more hackney carrige licences than can be a valid ground for refusal. The way in which this council, like many others, operates is by fixing a quota from time to time. Of course it has to reconsider the quota. As I have already said, and as Mr Tanzer accepts, it is also under a legal obligation to consider applications for exceptions being made to the quota, as it did in this case.
Mr Watt-Pringle for Mr Ashdown makes a major point and a subsidiary point. I will deal first with his subsidiary point. It is that, when in his written reasons the learned judge said that one of the submissions which the court was impressed by -- and impliedly he must have meant the court accepted -- was the submission "that there is no current demand for taxis in Brighton", the Crown Court was wrong to base it decision upon that conclusion. It was wrong, submits Mr Watt-Pringle, for two reasons. Firstly, this was not an issue before the Crown Court. It was not an issue because while it was accepted that the council had a quota and was not minded to grant any licences in addition to that quota as a general proposition, nevertheless it had considered Mr Ashdown's case as a potential exception to that quota. Since it was considered an exception, in one sense the very question which the council had considered was whether his personal circumstances were such that it should make an exception by adding one to the quota. The existence of the quota was not of itself a valid reason for refusal. The question was whether there were valid grounds for granting the exception.
We think that Mr Tanzer is right in saying that when the judge said, "There is no current demand", he must be taken as using shorthand for the words of the statute; that is to say, "There is no significant unmet demand". We would accept that. I do not think Mr Watt-Pringle really argued to the contrary. For my part, I agree with the point made by Mr Watt-Pringle that this of itself was not a valid ground of refusal. However, if that stood alone, I am not confident that would justify sending the matter back to the Crown Court.
I turn to consider the main point which Mr Watt-Pringle puts before us. He argues that it was quite clear that the policy as such did not apply to his client. What his client was seeking was that the Council, and then the Crown Court, should say that his particular personal circumstances -- the length of time he had worked in the taxi trade; his clean record; his good record as a taxi driver; his misfortune in suffering the heart attack at the very moment when he might have expected to be granted a plate -- were all factors whichs ought to be taken to outweigh the policy conditions. Mr Watt-Pringle says, "I argued this strongly before the Crown Court. Those considerations are not referred to at all in the decision of the Crown Court (as recorded in the letter of 19th October 1989) and so either it seems that, albeit I had argued them strongly and the case did not last very long, they were not matters which the court took into consideration, in which case the court was contravening the first fundamental principle of the Wednesbury case [1948] 1 KB 223, [1947] 2 All ER 680. Alternatively, if the court really did take them into consideration then it has not properly set out its reasons for refusal and at the very least my client is entitled to know what those reasons were".
For that proposition Mr Watt-Pringle refers us to a number of authorities. The first and major one is the decision of the House of Lords in Westminster City Council v Great Portland Estates plc [1985] AC 661, [1984] 3 All ER 744. That was a case which concerned the City of Westminster's district plan. That plan contained a policy for office development. The procedure for the approval of the plan was that objections to the plan, as first published, had to be the subject of a public inquiry before an inspector. The inspector made recommendations to the City Council. The City Council itself would then consider those recommendations and decide whether or not to amend the plan. The inspector recommended an amendment to the plan with regard to this office policy, but the City Council did not accept his recommendation. The applicants, who were a property company with very substantial holding in the city of Westminster challenged that decision, amongst other matters, on the ground that the reason given by the City Council for their decision not to accept the recommendation of the inspector were not properly and validly set out.
The House of Lords upheld that objection and quashed the City Council's decision. In a speech, with which all the other members of the House agreed, Lord Scarman said at page 673D:
"When a statute requires a public body to give reasons for a decision, the reasons given must be proper, adequate, and intelligible. In In re Poyser and Mills' Arbitration [1964] 2 QB 467, Megaw J had to consider section 12 of the Tribunals and Inquiries Act 1958 which imposes a duty upon a tribunal to which the Act applies or any minister who makes a decision after the holding of a statutory inquiry to give reasons for their decision, if requested. Megaw J commented, at p 478:
'Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised.'
He added that there must be something 'substantially wrong or inadequate' in the reasons given. In Edwin H Bradley and Sons Ltd v Secretary of State for the Environment [1982] 264 EG 926, 931 Glidewell J added a rider to what Megaw J had said: namely, that reasons can be briefly stated. I accept gladly the guidance given in these two cases."
That is now the major authority in relation to the giving of reasons, but Mr Watt-Pringle has properly drawn to our attention also a brief passage in the judgment of Mann J, sitting to hear the Crown Office list, in the case of R v The Mental Health Review Tribunal, ex parte Clatworthy [1985] 3 All ER 699 where the learned judge said at page 704:
"Standing back and looking at these reasons and asking, would the applicant from those reasons know why the case advanced in detail on his behalf had not been accepted? I am compelled to conclude that the answer is No, he would not."
Mr Watt-Pringle invites us to ask ourselves that same question and of course to arrive at the same answer.
Finally, in the recent decision of the Court of Appeal in Save Britain's Heritage v The Secretary of State for the Environment & Ors, decided on 30th March this year (of which we have a Lexis transcript) Woolf LJ giving the principal judgment said:
"The standard" -- that is to say the standard of reasons -- "will not be, therefore, the same for all decision-making processes, but will differ according to the nature of the decision and the terms of the relevant legislation. If a decision has to be taken rapidly with no opportunity to reflect on how it is expressed, a lower threshold is likely to suffice. If on the other hand, the decision is a considered decision taken at leisure by a trained lawyer a higher standard can be expected. The importance of the issue to which the decision relates can also affect the required quality."
I respectfully adopt that. Mr Watt-Pringle submits that taking account of the fact that this was a decision by a judge of the Crown Court, albeit his reasoning could (as Lord Scarman said, adopting some words of mine) be briefly expressed, nevertheless they had to be sufficient to make it clear to all who were concerned -- particularly to Mr Ashdown -- why it was that the case that he had advanced had not been accepted. Mr Watt-Pringle submits that when you look at the reasons, taking into account what the judge said when he actually concluded the hearing but looking particularly at what he recorded in writing, all one finds is that he is recording the Borough Council's policy. He does not set out any part of the argument for the applicant nor does he say why it was that that court had not accepted that argument or found that the personal circumstances of the applicant outweighed the Borough's Council's normal policy.
For my part, I accept that submission. The Crown Court did not need to say very much. In my view the judge, with the greatest respect to him, should have said rather more at the conclusion of the hearing. I realise that this is a licensing matter and that it did not demand any great elaboration. The case itself was a short one and the decision could have been quite short. In my view, the learned judge should have indicated shortly (preferably at the conclusion of his judgment but if not then, in writing later) what considerations it was that drove him and the learned magistrates to the view that Mr Ashdown's personal circumstances were not sufficient to outweigh the Borough Council's policy. He only needed to say shortly that they had taken into account the various matters, to refer briefly to them and then to say that they had weighed them up. For my part, I am persuaded by Mr Watt-Pringle's argument that the reasons set out in the letter do not show clearly that the Borough Council did indeed balance those considerations as it should have done.
Mr Tanzer sought to persuade us that since the court had had all these considerations argued before it and said everything which could be said had been said, we ought to assume that of course it did the balancing act. "Ought to assume" is not good enough in relation to a Crown Court.
Taking account of that major argument and also the subsidiary point to which I have already referred, although I think this is a misfortune for the Borough Council who (as I have already said) did all that they properly could when they were considering the matter, I conclude that this decision of the Crown Court is not satisfactorily recorded and it therefore ought not to stand.
I would therefore quash it and remit the appeal of Mr Ashdown to the Crown Court to be reheard.
JUDGMENTBY-2: OTTON J
JUDGMENT-2:
OTTON J: I agree. In my judgment, the reasons given at the end of the hearing and in response to the request did not conform with the criteria laid down in Westminster City Council and Great Portland Estates, [1985] AC 661, [1984] 3 All ER 744, R v The Mental Health Review Tribunal, ex parte Clatworthy [1985] 3 All ER 699 and Save British Heritage v The Secretary of State (unreported, 30 March 1990) decisions to which my Lord has referred. On neither occasion, nor when read together, do the reasons given become adequate or intelligible., On each occasion they fell below the standard to be expected from a professional judge. I am also left with the same feeling of disquiet. The appeal appears to have been conducted on the basis that the applicant was not required to deal with the issue as to whether there was a significant unmet demand within section 16 of the Transport Act 1985. However, in the letter there is an express reference to this matter and in such a way that I am left with the lurking doubt that this matter did in fact enter into the reasoning process upon which the decision was founded. If this is so, it was not a material consideration and so the decision itself might be flawed.
For these reasons I agree that the application should be allowed and that the case should be remitted to the Crown Court.
DISPOSITION:
Application allowed
SOLICITORS:
Wynne Baxter Godfree, Brighton; Brighton Borough Council
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