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PostPosted: Tue Jan 09, 2007 2:25 pm 
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R v Hyndburn Borough Council Ex parte Rauf and Another

Queen's Bench Division (Crown Office List)

12 February 1992

COUNSEL:
A Nadin for the Applicants; A Bradley for the Respondent

PANEL: Kennedy J

JUDGMENTBY-1: KENNEDY J

JUDGMENT-1:

KENNEDY J: This is an application for judicial review of what are said to be two decisions of the respondent local authority to be found in two letters dated 31st January 1991 and 31st May 1991. For reasons which will become apparent, it seems to me that there was really only one decision; that decision was embodied in the earlier letter, and that is of some significance when I come to deal with the question of delay.


The applicant, Mr Rauf, is a taxi driver, living in Accrington, Lancashire. On 21st January 1991 he applied to the respondent local authority for a private hire vehicle licence in respect of a Toyota motor car first registered in 1985. That application was accompanied by an AA report which was generally favourable, but on 31st January 1991 the respondent authority rejected the application in a letter. The material part of that letter reads:

". . . since the vehicle is now 5/6 years old it does not comply with Section 2(a) of the Council's Private Hire Vehicle Conditions which states as follows:-

'From 1st August, 1990 the Council shall only license vehicles which are being registered for the first time if the vehicle is three years old, or less, at the time of the application.'

Your application is therefore refused for that reason. You have, of course, the right to appeal to the Magistrates' Court against this decision."

The applicant did not immediately seek to challenge that decision, either in the Magistrates' Court or by means of an application for judicial review, but nearly four months later on 23rd May 1991 solicitors acting on his behalf wrote to the respondent authority asking the authority to confirm that the position of the respondents remained that the application "is refused on the basis of the three-year policy rule".

On 31st May 1991 the respondents' confirmed in writing that their position in relation to the applicant's application remained unchanged. That letter continued:

"A private hire vehicle to be licensed for the first time, must be less than three years old."

Mr Nadim helpfully has explained to me what had been happening in the interval. It seems that in or about February 1991 his client consulted the solicitors who are at present acting for him. They at some stage approached the legal aid authorities. The legal aid authorities wanted clarification of the position. Some advice was obtained and at some stage another discontented applicant, on this occasion, I think, a taxi operator, Mr Kasim, also consulted the legal aid authorities and one way or another it was June 1991 before a conditional legal aid certificate was obtained. Mr Rauf's actual legal aid certificate is dated, I am told, 1st July 1991. Even that, however, does not explain why it is that these proceedings were not commenced until 3rd September 1991.

It is no secret that so far as the applicant is concerned this is something of a test case because many other private hire and taxi operators are, I am told, affected by the respondents' age of vehicle policy, which again, I am told, is not unlike the policies operated by a number of other local authorities.

For the applicants Mr Nadim submits that the policy is unlawful, irrational and offends against the duty of the respondents not to fetter their statutory discretion.

For the respondents, Mr Bradley submits, first, that a challenge by way of judicial review is inappropriate, having regard to the availability of an alternative remedy; secondly, that this challenge is out of time; thirdly, that the applicants were at fault in not drawing either of those two points, that is to say, the availability of an alternative remedy and the delay, to the attention of the judge when seeking leave and, fourthly, that in any event the challenge to the respondents' policy should fail on the merits.

In order to deal with those issues it is necessary to set this matter in its statutory framework and to say a little about how the respondents' age of vehicle policy came to be implemented. The relevant statutory provisions are to be found in section 48 of the Local Government (Miscellaneous Provisions) Act 1976, the material parts of which read as follows:

"(1) Subject to the provisions of this Part of this Act, a district council may on the receipt of an application from the proprietor of any vehicle for the grant in respect of such vehicle of a licence to use the vehicle as a private hire vehicle, grant in respect thereof a vehicle licence:

Provided that a district council shall not grant such a licence unless they are satisfied

(a) that the vehicle is --

(i) suitable in type, size and design for use as a private hire vehicle; (ii) not of such design and appearance as to lead any person to believe that the vehicle is a hackney carriage.

(iii) in a suitable mechanical condition;

(iv) safe; and

(v) comfortable;

(b) that there is in force in relation to the use of the vehicle a policy of insurance or such security as complies with the requirements of Part V of the Road Traffic Act 1988,

and shall not refuse such a licence for the purpose of limiting the number of vehicles in respect of which such licences are granted by the council.

(2) A district council may attach to the grant of a licence under this section such conditions as they may consider reasonably necessary including, without prejudice to the generality of the foregoing provisions of this subsection, conditions requiring or prohibiting the display of signs on or from the vehicle to which the licence relates . . .

(7) Any person aggrieved by the refusal of a district council to grant a vehicle licence under this section, or by any conditions specified in such a licence, may appeal to a magistrates' court."

Turning now to the respondents' policy, it is clear from the affidavit of Mr Hargreaves, the respondents licensing enforcement officer, that in late 1988 the respondent became concerned that vehicles which did not satisfy the age limit conditions imposed by other authorities were being brought to Hyndburn. On 8th February 1989 members of the council licensing sub-committee and their officers met representatives of the private hire vehicle operators and owners to discuss a proposal to introduce a condition governing vehicle age limits. The owners and operators favoured more frequent testing, and after similar consultation with representatives of the hackney carriage trade the licensing sub-committee on 30th August 1989 resolved to introduce an age limit. That resolution as amended at the council meeting held on 24th October 1989, was as follows:

"(1) That Private Hire and Hackney Carriage vehicles must be no more than 3 years old when first registered;

(2) That the maximum age of a Private Hire and Hackney Carriage Vehicle must be no more than 7 years;

(3) That the maximum age of an FX4 must be no more than 11 years.

(4) That six monthly testing be imposed from the 1st February 1990; and

5. That the introduction of the age limit on vehicles be imposed from 1st August 1990 but that an exception be made in the case of existing licenced vehicles, and that the seven year rule referred to in part (2) above be applied from 1st January 1991."

The sub-committee decision of 30th August 1989 had been communicated to private hire and hackney carriage operators in a letter dated 5th September 1989, so it is reasonable to conclude that the present applicant was well aware of the policy before he made his licence application of 29th January 1991.

As to why the vehicle age limit policy was introduced, Mr Hargreaves says in paragraph 7 of his affidavit:

"The justification for this requirement is the Council's desire to ensure that vehicles which are to be used for either of these purposes" -- that is to say, as private hire vehicles or hackney carriages -- "are not only mechanically sound at the time of the application but are also likely to remain so, accidents excepted, during the following six months until their next test."

Mr Hargreaves then goes on to spell out the failure and defect discovery rates of vehicles on inspection, which shows that those rates increase in relation to age. That is helpfully set out in two bar charts reproduced at pages 70 and 71 of the applicant's bundle; needless to say, the progress is not entirely even, but the general direction of the charts is obvious upon looking at them.

I return now to the first submission made by the respondents, namely, that the applicant if he wished to challenge the decision should have used the right of appeal to the Magistrates' Court, which is expressly provided by the same section of the statute. As Mr Bradley points out, that right of appeal could have been exercised quickly, and relatively cheaply. If the applicant was dissatisfied with the decision of the Magistrates' Court he could then have gone to the Crown Court or, by way of case stated, to this court. At every stage he could have challenged the terms and the implementation of the respondents' policy, and he should not, it is submitted, seek to by-pass that appellate procedure.

In support of that submission Mr Bradley invited my attention to the decision of the Court of Appeal in R v Chief Constable Merseyside Ex parte Calveley [1986] QB 424 and particularly at page 433 in the judgment of the Master of the Rolls, Sir John Donaldson. What he said at letter B is this, referring to his own judgment in a previous case:

"It is a cardinal principle that, save in the most exceptional circumstances, the judicial review jurisdiction will not be exercised where other remedies were available and have not been used."

He goes on:

"This like other judicial pronouncement on the inter-relationship between remedies by way of judicial review, on the one hand, and appeal procedures, on the other, is not to be regarded or construed as a statute. It does not support the proposition that judicial review is not available where there is an alternative remedy by way of appeal. It asserts simply that the court in the exercise of its discretion will very rarely make this remedy available in these circumstances."

There are further observations on the same page to similar effect.

What is submitted by Mr Nadim is that in effect this is one of the very rare cases in which the court should make the remedy of judicial review available, despite the existence of an alternative remedy in the form of a right of appeal to the Magistrates' Court. He points out that there is a decision in the case of Sharpe v Nottingham City Council (1981) Current Law Year Book paragraph 2,357, which shows that in a somewhat similar case there was an appeal to the Crown Court and that decision apparently went against the local authority in that particular case. In effect, he submits that here the applicant is not simply concerned with the decision in relation to his own vehicle but is concerned with the policy in general and seeks the decision of this court as to whether or not that policy is valid.

However, as it seems to me, he is faced with the difficulty that the statute does provide a specific remedy to an applicant such as this. In my judgment this is not one of the exceptional cases which the Master of the Rolls had in mind. This is a case in which certainly if the point is taken on behalf of the respondents, and it is, it is incumbent upon the applicant to use the right of appeal which is made available to him by the statute. As Mr Bradley points out, from the respondents' point of view the exercise of that right of appeal would have involved relatively little expenditure and it is at least possible that the magistrates might have taken the view which would be favourable to the applicant and the matter would then have ended there with very little of the local ratepayers' or poll tax payers' money being expended.

In my judgment in this case the applicant should have used the alternative remedy which was available to him before coming here. That of course of itself is sufficient to dispose of this application. However it would not be right, having regard to the submissions which have been addressed to me, to dispose of it simply on that basis.

The second submission made on behalf of the respondents is that, even if it were appropriate to challenge the decision of 31st January 1991 by means of judicial review, and as I have indicated I am satisfied the letter of 31st May 1991 was not a fresh decision, the application for judicial review should have been made promptly as required by O 53, r 4 and section 31(6) of the Supreme Court Act.

There is before me no evidence at all to explain the delay from 31st January 1991 to 3rd September 1991, a period of over seven months. Mr Nadim rightly accepts that there should have been such evidence, although he sought to fill the gap in the way to which I have already referred. It seems to me that he was unsuccessful in his attempt because, even assuming, which I am afraid I do not on the information I have been given, that 1st July 1991 was the first day on which this applicant could have been put in a position to proceed with the benefit of legal aid, it seems to me that the certificate, had there been a degree of urgency, could have been obtained at an earlier date; but even if that were the first date it would have been necessary then to proceed with a good deal of expedition. It is not proceeding with expedition if the institution of proceedings is then deferred until the following 3rd September. On this ground also I am not satisfied that the application has been made promptly and accordingly it fails.

Dealing with both the question of alternative remedy and the question of delay, it may be appropriate to say that in one of the authorities which has been brought to my attention, namely R v Metropolitan Borough Council Wirral, Ex parte Wirral Licensed Taxi Owners Association (a decision of Glidewell J on 9th September 1982) the challenge was not to a refusal of an individual application but to the council's own decision to implement a policy which in certain respects had similarities with the policy which was decided upon by the council in the present case. It may well be that different considerations would be appropriate if one were dealing with that type of challenge; for example, it could not possibly be said that there would be available an alternative remedy if what was sought to be challenged here was the decision taken by the council on 24th October 1989. But of course the problem with which the applicant is faced is that October 1989 is so long ago that he is plainly out of time in relation to any challenge to that policy now.

Another point which was taken by Mr Bradley, as I have already indicated, was that there was a failure on the part of the applicant to bring certain of his difficulties before the judge when seeking leave on an ex parte motion, and, of course, it is the duty of counsel to bring all relevant matters to the attention of a judge in that situation. However, Mr Nadim has satisfied me that the difficutly which he had to overcome in relation to the existence of an alternative remedy was brought to the attention of the judge at that stage and he is able to say that there was before the judge information which would have enabled the judge, if he had considered it appropriate, to take the view even at that stage that the application was out of time.

He accepts, as I have already indicated, that there was not, as there should have been, an explanation for the delay and no doubt he will appreciate that on any future occasion there should be such an explanation. But I do not on this occasion think it necessary to say any more about that particular point which was advanced by Mr Bradley.

That brings me to the substantive challenge in which Mr Nadim invites my attention to the words of section 48(1), to which I have already referred. He points out that the discretion to grant a licence is unfettered provided that a vehicle has certain attributes all of which can easily be satisfied by a vehicle more than three years old.

If a licence is granted, then section 48(2) permits the respondents to attach conditions to the licence, but, submits Mr Nadim, that situation was never reached in this case. That, on the face of it, seems to me to be right.

Mr Nadim submits that whenever a wide discretion is granted, as it is by section 48(1), a body such as this respondent authority should not fetter its discretion by laying down rigid conditions which have to be satisfied, and he invites my attention to what was said by Cooke L in Stringer v Minister of Housing [1971] 1 All ER 65 and in particular to a passage which appears at page 80E where the learned judge said this:

"It seems to me that the general effect of the many relevant authorities is that a Minister charged with the duty of making individual administrative decisions in a fair and impartial manner may nevertheless have a general policy in regard to matters which are relevant to those decisions, provided that the existence of that general policy does not preclude him from fairly judging all the issues which are relevant to each individual case as it comes up for decision."

Mr Nadim submits that the respondents' policy does not satisfy that proviso.

He points out that, although the 1976 Act was amended by the Transport Act 1985, and for that matter by the Road Traffic (Consequential Provisions) Act 1988, Parliament did not take the opportunity to introduce the concept of vehicle age into section 48, and after the 1985 Act the Department of Transport published a circular, No 8 of 1986, paragraph 26 of which reads:

"Some councils set advisory age limits on the vehicles they are prepared to license. These cannot be rigidly enforced and if a vehicle proves to be in a satisfactory condition it should be licensed regardless of its age. It has recently come to the notice of the Department that some councils are proposing to insist that any vehicle submitted for initial licensing must be new. This is seen as an unwarranted restriction on entry to the trade for would-be taxi proprietors."

What Mr Nadim submits in essence is that a council such as these respondents may have a policy, but the policy must be so formulated as to make it clear that it will embrace exceptional cases by the introduction of the word "normally". Furthermore, he submits, the policy should not be of the type which this local authority had, at any rate so far as the starting point is concerned, because, he submits, it is simply irrational to say that a vehicle more than three years old may not be licensed. As regards the terminating point, he is less inclined to take issue.

For the respondents, Mr Bradley submits that the unfettered discretion in section 48(1) of the 1976 Act can also be exercised to refuse applications, perhaps by raising standards, provided that the purpose is not to restrict numbers, and that, having regard to many of the matters specifically mentioned in section 48(1), the age of a vehicle on first application is a proper consideration. Where a discretion such as this is exercised in accordance with a policy, he points to the decision of the Court of Appeal in R v Yarmouth Borough Council, Ex parte Sawyer (1987) 86 LGR 617 as an example of the unwillingness of courts to interfere. He also points to the additional powers granted to the licensing authority by section 48(2), section 57 and section 60 as evidence of Parliament's desire to give to the authority a very wide measure of control. He submits that section 48(2) can also extend to conditions precedent to the grant of a licence, which I am still reluctant to accept (save to the extent that applicants can, and indeed should, be told in advance of the terms on which a licence will be granted). But, more significantly, he submits that the three-year rule has been imposed by the respondents, after proper consultation, to further what they conceive to be, and properly conceive to be, the statutory objectives of the licensing scheme. (See for this purpose the passage from the affidavit of Mr Hargreaves to which I have already referred).

Of course any decision taken by the respondents must not be unreasonable, Mr Bradley concedes, in a Wednesbury sense. (Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1948] 1 KB 223, [1947] 2 All ER 680). But in this licensing sphere, as in dealing with statutory grants and applications for statutory grants, it is not ipso facto unreasonable or an unlawful fettering of discretion to set standards or to adopt an approach applicable, at any rate on the face of it, to every case. If it were then, Mr Bradley submits, Wirral Metropolitan Borough Council could not have insisted on taxi operators using London-type cabs, yet in that case, to which I have already referred, Glidewell J held that they were entitled to do so. At page 18E of the transcript he recognised that the decision might bear more harshly on one group than another but said that that was not of itself a ground for quashing the administrative decision.

In R v Manchester City Justices, Ex parte McHugh [1989] RTR 285 Simon Brown J upheld a local authority condition requiring new licences or the grantees of new licences to adapt their vehicles to carry wheelchair-bound passengers; that requirement, like the London-type cab requirement and the present age requirement, was not so formulated as to invite applications for the requirement to be waived.

Mr Nadim seeks to distinguish both of those authorities, and the conditions to which they relate, as being, as he puts it, "post-grant condition cases where the conditions were capable of fulfilment". I am afraid that is not a distinction which I find it possible to make. In British Oxygen Company v Board of Trade [1971] AC 610 the House of Lords was concerned with a statute which provided that the Board of Trade "may make" a grant and it, that is to say the Board of Trade, adopted a policy of not doing so where the equipment cost less than £25. The legality of that decision was one of the issues in the case.

At page 624 Lord Reid said this:

"If the Minister who now administers the Act, acting on behalf of the Government, should decide not to give grants in respect of certain kinds of expenditure, I can find nothing to prevent him. There are two general grounds on which the exercise of an unqualified discretion can be attacked. It must not be exercised in bad faith, and it must not be so unreasonably exercised as to show that there cannot have been any real or genuine exercise of the discretion. But, apart from that, if the Minister thinks that policy or good administration requires the operation of some limiting rule, I find nothing to stop him."

He then cited from the judgment of Bankes LJ in R v Port of London Authority, Ex parte Kynoch [1919] 1 KB at page 176. Then he continued:

"I see nothing wrong with that. But the circumstances in which discretions are exercised vary enormously and that passage cannot be applied literally in every case. The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application' (to adapt from Bankes LJ). I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say -- of course I do not mean to say that there need be an oral hearing."

In a somewhat similar vein Viscount Dilhorne at page 630, having cited the same passage from the judgment of Bankes LK, went on to say this:

"In this case it was not challenged that it was within the power of the Board to adopt a policy not to make a grant in respect of such an item. That policy might equally well be described as a rule. It was both reasonable and right that the Board should make known to those interested the policy it was going to follow. By doing so fruitless applications involving expense and expenditure of time might be avoided. The Board says that it has not refused to consider any application. It considered the appellants'. In these circumstances it is not necessary to decide in this case whether, if it had refused to consider an application on the ground that it related to an item costing less than £25, it would have acted wrongly.

I must confess that I feel some doubt whether the words used by Bankes LJ in the passage cited above are really applicable to a case of this kind. It seems somewhat pointless and a waste of time that the Board should have to consider applications which are bound as a result of its policy decision to fail. Representations could of course be made that the policy should be changed."

In the present case Mr Bradley submits that this local authority did give such consideration as was appropriate to this application. It indicated in the letter which it wrote in reply to it that the application was refused in line with the policy and that did not indicate that it was shutting its ears to any application, either considered individually or an application which amounted to an application to change the policy as a whole.

In those circumstances, it seems to me, the stance adopted by the local authority in relation to the application was a lawful one and therefore on the substantive ground, as well as on the two procedural grounds, this application fails.

DISPOSITION:
Application refused

SOLICITORS:
Rust, Moss & Co, Accrington; Solicitor, Hyndburn Borough Council, Accrington


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PostPosted: Tue Jan 09, 2007 2:31 pm 
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Many thanks JD, its appreciated.

regards

CC

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