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Dittah v Birmingham City Council; Choudry v Birmingham City Council
QUEEN'S BENCH DIVISION
[993] RTR 356, 157 JP 1110
HEARING-DATES: 29 January 1993
29 January 1993
CATCHWORDS:
Licensing -- private hire vehicles -- whether operators, vehicles and drivers licences must all be issued by the same local authority -- Part II, Local Government (Miscellaneous Provisions) Act 1976.
HEADNOTE:
On the true construction of the scheme of licensing of private hire vehicles contained in Part II of the Local Government (Miscellaneous Provisions) Act 1976, the licences relating to operators, vehicles and drivers must all be issued by the same local authority, namely the local authority within whose area the vehicles will operate.
INTRODUCTION:
Appeals by way of case stated.
COUNSEL:
R Massey, for the appellants; T Raggatt, for the respondent.
PANEL: Kennedy LJ, Clarke J
JUDGMENTBY-1: KENNEDY LJ
JUDGMENT-1:
KENNEDY LJ: We have before us two appeals by way of case stated from decisions of the same stipendiary magistrate sitting at Birmingham on September 12, 1991. The facts in each case are very similar, and the legal point which arises in each case is the same. Each of the appellants is represented by the same counsel; and the respondent being the same in each case, we have heard the two appeals together.
Informations
It is common ground that by virtue of Part II of the Local Government (Miscellaneous Provisions) Act 1976 a private hire vehicle may not operate in a controlled district such as Birmingham unless there are in existence three licences. There must be an operator's licence, the vehicle must be licensed and so must the driver. Both appellants held operator's licences issued by the Birmingham City Council, but in relation to the appellant Dittah the first information heard by the magistrate alleged that he on May 13, 1990, in Birmingham, operated a motor car as a private hire vehicle, there being no current licence in force for that vehicle contrary to s 46 of the 1976 Act.
The second information alleged that on the same day the same vehicle was being operated by a driver who did not have a current licence under s 51 of the Act.
The third and fourth informations made two similar allegations in relation to another of the appellant Dittah's vehicles which was observed in Birmingham on May 31, 1990, and the two informations relating to the appellant Choudry made similar allegations in relation to one of his vehicles which was observed in Birmingham on May 29, 1990.
Other Licences
It was accepted by the prosecution that at all material times the vehicles and drivers referred to in the informations were licensed by an adjoining controlled authority, namely Solihull, but the prosecution contended and the magistrate accepted that under the Act an operator who holds an operator's licence issued in Birmingham can only operate in that controlled district vehicles and drivers licensed in Birmingham.
Operators
The first issue which Mr Massey, for the appellants, sought to raise was whether on the bare facts of the cases stated the appellants were "operating" vehicles under s 46(1)(e) of the 1976 Act simply by using drivers/vehicles licensed in the adjoining controlled district on the isolated instances specified. However, as I indicated to Mr Massey, it is my view that that point cannot be raised on these cases stated in their present form. There is only one question at the end of each case, namely:
Whether s 46(1)(e) of the Local Government (Miscellaneous Provisions) Act 1976 must be read subject to the provisions of s 80(2) of that Act so as to require private hire operators licensed under s 55 of the Act to make use only of vehicles and drivers licensed by the council of the district by which the operators are licensed, or whether s 75(2) of the Act, read in conjunction with s 80, allows operators to use or to employ drivers and vehicles licensed by a district council other than that in which the operator is licensed.
If the appellants had wished to argue whether there was sufficient evidence to enable the magistrate to find as he did in relation to operation, that question would have to be raised in the case, and the case would no doubt set out, or exhibit, the evidence on which the magistrate relied in order to reach his conclusion. On reflection Mr Massey accepted that position, and accordingly the only issue which we have to consider is the issue of statutory interpretation.
The Respondent's Case
The case for the respondent local authority is quite simply that operators, vehicles and drivers licences must all be obtained from the same local authority, being the local authority where operations are going to take place, because that is what the statute provides and that is in accordance with the underlying regulatory purpose of Part II of the Act which, as Russell, LJ said in St Albans District Council v Taylor [1991] RTR 400 at 403A, is "to provide protection to members of the public who wish to be conveyed as passengers in a motor car provided by a private hire organization with a driver." If one licensing authority is responsible for issuing all three types of licence, the conditions can be interrelated and effective steps can be taken to see that they are observed. With that in mind, Mr Raggatt, for the respondent, submits that it is possible properly to construe the words of the statute as to the three types of licence relating to private hire vehicles, starting with the operator's licence.
(A) Operator's Licence
Section 46(1), omitting the opening words which are not alleged to be material in this case, provides that:
"(d) No person shall in a controlled district operate any vehicle as a private hire vehicle without having a current licence under s 55 of this Act."
Section 55(1) provides that:
"Subject to the provisions of this Part of this Act a district council shall on receipt of an application from any person for the grant to that person of a licence to operate private hire vehicles grant to that person an operator's licence."
The ensuing subsections of s 55 give the licensing authority the power, within limits, to decide the duration of the licence and to attach to it "such conditions as they may consider reasonably necessary." An applicant is also given a right of appeal, and s 80(1) provides:
"'Operate' means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle."
Finally s 80(2) provides:
"In this Part of this Act references to a licence, in connexion with a controlled district, are references to a licence issued by the council whose area consists of or includes that district, and 'licence' shall be construed accordingly."
So, as it seems to me, it is quite clear that no one can, in a controlled district such as Birmingham, operate (ie in the course of business make provision for the invitation or acceptance of bookings) a private hire vehicle without having a current operator's licence issued by Birmingham City Council. That Mr Massey accepts, and, as I have said, that requirement was met by each of the appellants.
(B) Vehicle Licence
Section 46(1)(a) so far as material, provides that:
"No person being the proprietor of any vehicle . . . shall 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 under s 48 of this Act."
The word "proprietor" is defined in s 80(1), but nothing turns on that definition in this case.
Section 48 provides the mechanism for the licensing of private hire vehicles. Broadly speaking the licensing authority has to be satisfied as to the vehicle's suitability, it may attach conditions, and there is a right of appeal.
If s 80(2) were to be applied without qualification to s 46(1)(a), a private hire vehicle licensed in Birmingham could not be used in any other controlled district, so s 75 provides:
"(1) Nothing in this Part of this Act shall --
(a) apply to a vehicle used for bringing passengers or goods within a controlled district in pursuance of a contract for the hire of the vehicle made outside the district if the vehicle is not made available for hire within the district . . .
"(2) Paragraphs (a), (b) and (c) of s 46(1) of this Act shall not apply to the use or driving of the vehicle or to the employment of a driver of a vehicle while the vehicle is used as a private hire vehicle in a controlled district if a licence issued under s 48 of this Act by the council whose area consists of or includes another controlled district is then in force for the vehicle and a driver's licence issued by such council is then in force for the driver of the vehicle."
(C) Drivers' Licences
Similarly s 46(1)(b) provides that:
"No person shall in a controlled district act as a driver of any private hire vehicle without having a licence under s 51 of this Act."
Section 51 provides the mechanism for obtaining a driver's licence, but the effect of s 80(2) is qualified by s 75(2). In passing, Mr Raggatt invites our attention to s 51(3) which requires the licensing authority to keep a register of licensed drivers, a document which he submits would be of very little value if it were not kept by the authority for the controlled district from which the driver operated.
(D) Operator's Obligation
Coming now to s 46(1)(e) which is central to these cases, that subsection imposes on operators the obligation of ensuring that vehicles and drivers are properly licensed. It reads:
"No person licensed under the said s 55 shall in a controlled district operate any vehicle as a private hire vehicle --
(i) if for the vehicle a current licence under the said s 48 is not in force; or
(ii) if the driver does not have a current licence under the said s 51."
Section 80(2) clearly applies to s 46(1)(e) without qualification, so contends Mr Raggatt, the operator (see s 46(1)(d)), the vehicle (see s 46(1)(e)(i)) and the driver (see s 46(1)(e)(ii)) all have to have licenses issued by the controlled district where the operations take place. Mr Raggatt accepts that his interpretation does to some extent inhibit subcontracting and the transfer of resources by a large operator to meet a short term need, but he submits that it accords with the wording and the intention of the legislation.
The Appellant's Case
Mr Massey submits that whilst s 46(1)(e) is not specifically saved by s 75(2), the wording of s 75(2) was to avoid multiple applications for vehicle and driver licences. There was, therefore, no need to repeat the saving provisions of s 75(2) in relation to the second and third paragraphs of s 46(1)(e). The exclusion, submits Mr Massey, follows as a matter of logic. That I cannot accept. In my judgment if s 75(2) was intended to apply to s 46(1)(e) it would say so. In fact it is my view that the only obvious reason for having the words "in a controlled district" in s 46(1)(e) is to bring that subsection, to which s 75(2) is not applied, within the scope of s 80(2).
In his skeleton argument Mr Massey sets out possible problems which may arise if the Act is interpreted as, in my judgment it has to be interpreted, that is to say as the respondent submits. On close examination it seems to me that most of the problems are unlikely to arise in practice. Mr Massey invited our attention to the decision of this court in Britain v ABC Cars (Camberley) Ltd [1981] RTR 395 where a taxi with a vehicle licence in one district in which it operated was sent to an adjoining district to collect a fare. The operator was charged with operating in that adjoining district without an operator's vehicle licence. The Divisional Court upheld the justices' dismissal of those charges, but I can find nothing in that decision which is of real assistance to us in the present case.
Of rather more assistance is the decision in the St Alban's case, to which I have already referred, where a private hire operator's wife, at his request, drove his pre-booked customers in her unlicensed car free of charge. This court held that her husband was operating contrary to both parts of s 46(1)(e) because neither the vehicle nor the driver were licensed. The magistrates had found that there had been no hiring and that the vehicles were not operating as private hire vehicles, so the issues were not the same as those with which we are concerned. Furthermore, at the appeal hearing the defendant did not appear and was not represented. At p 403B, immediately after the passage which I have quoted above, Russell, LJ, in explaining the scheme of Part II of the Act, said:
"The vehicle has to be licensed before it can be so used (ie as a private hire vehicle) and is subject to periodical inspection by the licensing authority to insure its continuing suitability and safety -- see s 48. The driver has to be licensed by the same authority (my emphasis) and cannot be licensed without the requisite experience -- see s 51."
Mr Raggatt placed before us a letter dated June 25, 1992 from the Department of Transport to the District Secretary of the Bromsgrove District Council, para 3 of which reads:
"In our view applying s 80(2) to ss 46(1)(d) and (e) has the effect that an operator requires a licence from the area in which he intends to operate and may operate only in that area vehicles and drivers licensed by the same district. This has the practical effect that an operator licensed in area A may only use vehicles and drivers licensed in area A but these vehicles and drivers will by virtue of s 75(2) exemption be able to go anywhere in the course of the hiring."
That in my judgment is an accurate statement of the law, whatever may have been said elsewhere in the past.
Conclusion
Accordingly, in my judgment the answer to the question posed in each case must be that, as postulated, s 46(1)(e) of the 1976 Act must be read subject to the provisions of s 80(2) of that Act, so as to require private hire operators licensed under s 55 of the Act to make use only of vehicles and drivers licensed by the council of the district by which the operators are licensed when operating in that controlled district. The alternative construction cannot be supported, and these appeals must be dismissed.
JUDGMENTBY-2: CLARKE J
JUDGMENT-2:
CLARKE J: I agree.
JUDGMENTBY-3: KENNEDY LJ
JUDGMENT-3:
KENNEDY LJ: As agreed, there will be no order for costs.
DISPOSITION:
Appeals dismissed.
SOLICITORS:
Evans, Derry, Rennie & Co, Castle Bromwich; Crown Prosecution Service
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