Aylesbury Vale District Council v Call a Cab Ltd and another [DC]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy,Mr Justice Ouseley |
| Judgment Date | 12 November 2013 |
| Neutral Citation | [2013] EWHC 3765 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7131/2012 |
| Date | 12 November 2013 |
[2013] EWHC 3765 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Treacy
Mr Justice Ouseley
CO/7131/2012
Mr J Findlay, QC andMr R Clarke (instructed by Aylesbury Vale District Council) appeared on behalf of the Claimant
Mr P Kolvin, QC (instructed by Public Access) appeared on behalf of the Defendant
I will ask Ouseley J to give the first judgment.
This is an appeal by case stated against the decision of District Judge Pattinson at the Aylesbury Magistrates Court on 8 March 2013. His decision was to acquit both defendants in respect of five charges arising under section 46 of the Local Government Miscellaneous Provisions Act 1976. The first defendant was charged under that provision with operating a private hire vehicle without having a current licence, "in a controlled district". The second defendant was the sole director of the first defendant. He was charged with aiding, abetting, counselling or procuring those offences.
The crucial words for the purposes of this appeal are the words in section 46, "In a controlled district". Section 80 of the 1976 Act defines a controlled district as:
"Any area for which this part of this Act is in force by virtue of … a resolution passed by a district council under section 45 of this Act."
The district council in question is the Aylesbury Vale District Council, which was the prosecutor. The relevant area in respect of which it is said a resolution was in force was the whole of its area. Section 45 deals with how such a resolution has to be passed. By section 45(1):
"The provisions of this part of this Act, except this section, shall come into force in accordance with the following provisions of this section…"
Section 45(3) is the important one:
"A council shall not pass a resolution in pursuance of the foregoing subsection unless they have
(a) published in two consecutive weeks in a local newspaper circulating in their area notice of their intention to pass the resolution, and
(b) served a copy of the notice not later than the date on which it is first published in pursuance of the foregoing paragraph on the council of each parish or each community which would be affected by the resolution or, in the case of such a parish which has no parish council, on the chairman of the parish meeting."
The foregoing subsection referred to is subsection (2) which provides that if a council does pass a resolution bringing into force in its area the relevant parts of the Town Police Clauses Act 1847, they come into force on the day specified in the resolution.
The effect of the application of those provisions is to make private hire vehicles subject to a licensing regime which includes standards, for example in relation to vehicle maintenance, and also to apply Hackney Carriage licensing provisions. The Act does mean that when a section 45 resolution is passed, at least so far as private hire vehicles are concerned, failure to comply with the requirements creates a criminal offence which hitherto had not been the case.
It is agreed that the defence could, by way of a defence to the charge not contained in the statute, show on the balance of probability that no resolution under section 45 had been passed or, if passed, was subject to procedural failings such that it was invalid in consequence. That is the basis of the defence here so far as it gives rise to the appeal.
On the first day of the trial the defendant, without notice at all, raised the question of whether the necessary resolution to bring part 2 into operation had been passed. The District Judge adjourned the hearing for just over a month in order for the prosecutor to obtain evidence of the passing of the resolution. During that time it became apparent that the issue went wider than the passing of the resolution itself to the question of whether the requirements in section 45(3)(b) in respect of the resolution had themselves been met.
It is important in considering the District Judge's approach to the evidence then produced that the prosecutor accepted, first, that it was open to the defendant to seek to prove not just that the meaning and effect of the resolution produced by the prosecutor did not satisfy section 45, but also to seek to prove that the process leading to that resolution, however effective the resolution was on its face to meet the requirements of section 45, did not comply with section 45(3)(b). There was no dispute about the compliance with the newspaper notice in section 45(3)(a).
The prosecutor also accepted that the resolution would not have complied with section 45(3)(b) if any parish which should have been notified of the intention to pass the resolution had not been notified. That was recorded by the District Judge. In other words, a proven failing as to just one parish, irrelevant perhaps to the location of the defendant's business which was not in existence at the time of the passing of the resolution in 1989, would have led to a breach of the requirements of section 45(3) in relation to the resolution.
The evidence before the District Judge on the adjourned hearing came from both prosecutor and defendant. The prosecutor provided a statement from Mr White, the District Council's then head of administration. He produced the minutes of the Council's Transport Subcommittee meeting on 4 January 1989 which recorded that the principle of licensing of private hire vehicles be approved and minuted the passing of a resolution authorising the district secretary and solicitor to publish the necessary notice and serve notices on the Parish Council.
On 22 January 1989 the Development and Recreation Committee authorised the District Council's solicitor to publish the notices and to serve them on the Parish Councils in accordance with section 45(3), ie it resolved that the procedure under section 45(3) be carried out. It could not adopt, because it lacked the power to do so, the recommendation of the Transport Committee that part 2(b) applied to the area; that was for full Council to approve.
On 8 March 1989, full Council approved and adopted the Development and Recreation Committee minutes, seemingly adopting the recommendation. The District Judge had reservations about the effectiveness of that resolution upon which he did not reach any final conclusion. It appears that he had two reservations about its effectiveness. First, it was not specific as to whether the full Council had indeed resolved to apply part 2 to the District Council's area. Secondly, there was uncertainty as to whether the minuted action which it was adopting was the carrying out of the process under section 45(3) or the application of part 2 itself at the final outcome of the process. He appears to have thought that a resolution might have been missing. The evidence from Mr White also was to the effect that the records of notices which the Council might have served on the Parish Councils were not available as the relevant files had been destroyed many years ago.
The District Judge contrasted the Local Authority's researches with those of the second defendant who had contacted the clerks to a number of Parish Councils who had referred him on to Buckinghamshire County Council where the Parish Council records were retained. The second defendant managed to obtain copies of several pages of Parish Council meetings covering 12 Parish Councils over the relevant period.
In the light of the evidence before him the District Judge made these findings of fact about the process whereby the resolution, such as it was, came to be passed, leaving the question of what the resolution meant as rather uncertain. He concluded that the second defendant research had been meticulous, that he had not picked only evidence favourable to his case and that he was an honest and reliable witness. The judge then said:
"(iv) I have no reason to believe that any of the Parish Council minutes had been other than detailed, complete and accurate. In none of the minutes presented to me was there any evidence — let alone any convincing evidence — that any Parish Council had been notified.
(v) The prosecution had failed to produce any evidence that any Parish Council had been notified."
His decision two paragraphs further on was:
"My decision was that the defence had satisfied me on a balance of probabilities that Aylesbury Vale District Council had failed to notify the Parish Councils in breach of section 45(3) of the Act. Even a failure to notify one Parish Council out of a total of 112 would constitute a breach. I was satisfied that 12 Parish Councils had not been notified. Therefore it was not necessary for me to speculate as to whether the remaining 100 Parish Councils had been notified. Accordingly, I decided that the requirements of section 45(3)(b) had not been satisfied."
The first question raised in the case stated relates to the facts which I have just set out. I deal with that now. The first question is:
"1. Whether there was sufficient evidence on which the court could reasonably conclude that the requirements of section 45(3)(b) of the Local Government Miscellaneous Provisions Act 1976 had not been satisfied?"
It is agreed that the question which has to be asked is whether the conclusion which the District Judge reached was irrational. That is, was it irrational for him to conclude that the defendant had succeeded on the balance of...
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