Confederation of Passenger Transport UK v The Humber Bridge Board (Secretary of State for Transport, Local Government and the Regions, interested party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke,Lord Justice Jonathan Parker:,Lord Justice Auld: |
| Judgment Date | 25 June 2003 |
| Neutral Citation | [2003] EWCA Civ 842 |
| Docket Number | Case No: C1/2002/2397 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 June 2003 |
[2003] EWCA Civ 842
Lord Justice Auld
Lord Justice Clarke and
Lord Justice Jonathan Parker
Case No: C1/2002/2397
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HON MR JUSTICE NEWMAN
Royal Courts of Justice
Strand,
London, WC2A 2LL
Ms Elisabeth Laing (instructed by Pellys) for the Appellant
Ms Frances Patterson QC (instructed by Kingston Upon Hull City Council) for the First Respondent. The Second Respondent was not represented.
Introduction
This an appeal from an order made by Newman J on 1 November 2002 refusing an application by the appellant for judicial review of a decision of the second respondent with costs. The judge refused permission to appeal but permission was subsequently granted by Kay LJ.
The Parties
The appellant is the Confederation of Passenger Transport UK ("the Confederation") which is an organisation representing the majority, but not all, of the operators of public service vehicles ("PSVs") in the UK. The first respondent is the Humber Bridge Board ("the Board"), which is a statutory body having the power to administer the Humber Bridge. The Board's powers are contained in two Acts, namely the Humber Bridge Act 1959 and the Humber Bridge Act 1971 ("the 1959 Act" and "the 1971 Act" respectively). The bridge opened to traffic on 24 June 1981. The second respondent is the Secretary of State for Transport Local Government and the Regions, who has played no part in these proceedings.
The Issues
The issues are whether the Board was authorised to levy tolls on large buses under any or all of three Tolls Revision Orders made in 1997, 2000 and 2002 which were made by the relevant Minister, now the Secretary of State for Transport Local Government and the Regions ("the Secretary of State"). The judge held that the Board was so authorised.
The question arising under the orders of 1997 and 2000 is the same. In each case the judge held that the draftsman omitted a reference to large buses by mistake but that it is permissible to construe each order by appropriately reading in the words "large bus". The question is whether the court is entitled so to construe the orders. The question in the case of the 2002 Order is somewhat different. Here the judge held that a reference to large buses had been deliberately omitted but that they were included within the definition of goods vehicles. The question is whether, on the true construction of the order, the Board is entitled to levy tolls on large buses and, if so, on what basis.
The Legislative Framework
Section 61 of the 1959 Act provides as follows:
"(1) From and after the opening of the bridge for public traffic the Board may demand take and recover in respect of all traffic passing over or on the bridge tolls not exceeding those specified in an order (in this section referred to as 'the order') made by the Board and confirmed by the Minister in accordance with the provisions of this section and for any other services rendered by the Board in connection with the bridge such reasonable charges as they may think fit:
Provided that:
(a) the Board may by resolution if and when they think fit –
(i) cease to demand take or recover tolls in respect of traffic or certain classes of traffic passing over or on the bridge; and
(ii) resume demanding taking and recovering such tolls;
(b) the Board may also (if and when they think fit) allow traffic to use the bridge without paying tolls during such hours or on such occasions as they may from time to time determine.
(2) The Order when made by the Board shall be submitted to the Minister for confirmation and shall be confirmed by the Minister with or without modification not more than twelve months before the expected opening of the bridge for public traffic.
(3) After submitting the Order to the Minister for confirmation the Board shall furnish the Minister with such information and particulars certified in such manner as the Minister may require and shall publish in the London Gazette and in such newspapers as the Minister may require a notice stating –
(a) the general effect of the order; and
(b) that within a period of forty-two days from the date of the first publication of the notice any person having a substantial interest may object to the Order by giving notice to the Minister accompanied by the grounds of his objection and sending a copy thereof to the Board.
(4) Before confirming the Order the Minister shall if required by the Board or by any person who has objected to the Order and has not withdrawn his objection and in any other case if he thinks fit cause a local inquiry to be held by such person as he may appoint for the purpose.
(5) In confirming the Order with or without modification the Minister shall have regard to the financial position and future prospects of the undertaking and the order shall prescribe such maximum tolls as in the Minister's opinion shall not exceed by more than is reasonable the tolls estimated to be required to be demanded taken and recovered when the bridge is first opened for public traffic to produce an annual revenue not substantially less nor substantially more than adequate to meet such expenditure as is authorised for the several purposes mentioned in section 75 (Application of revenue) of this Act
(6) The power of the Minister to confirm the Order shall be exercisable by statutory instrument."
Section 63 provides for a list of the tolls to be appropriately exhibited. Section 64 provides for the recovery of tolls as a civil debt and section 65 provides that the Board may in some circumstances refuse to permit the use of the bridge by those who knowingly and wilfully refuse or neglect to pay the tolls. Section 68 provides for certain exemptions from the tolls.
The judge summarised the position under the 1959 Act in this way in paragraphs 5 and 6 of his judgment:
"5. The following particular points can be made in connection with the above sections and the power of the Board to levy a toll. The power conferred is an originating power which gives rise to a duty on the Minister to consider confirmation or modification of the Order made by the Board. The power to levy is contingent upon confirmation being given by the Minister. The power is expressed in terms which contemplate the Board recovering a toll 'in respect of all traffic passing over or on the bridge'. The Act can be taken to contemplate that, where revenue is required for the purposes set out in section 75 (application of revenue), all traffic will be charged where it is reasonable to do so or a specific power is exercised not to do so, or the traffic is exempt. The Act envisages that there will be classes of traffic specified in the Order. Thus the proviso at section 61(1)(a)(i) contemplates that where the Board has the power to demand a toll, the toll having been confirmed by the Minister, the Board may by resolution cease to demand and recover the toll which may be in respect of "traffic", or certain classes of traffic passing over or on the bridge. Section 75 of the Act imposes an obligation on the Board to apply its revenue in the manner therein specified, laying down the Order of priority for its application. Priorities 1 to 8 comprise the working and establishment expenses and costs of the undertaking, interest on borrowed money and so forth. Ninthly, the section provides:
'Ninthly, in a reduction of tolls which may be demanded taken and recovered under this Act or for such other purpose as may be approved by the Minister'
6. It follows that for the exercise of the power to levy tolls, both by the Board and the Minister, to be lawful, it must be exercised reasonably and for the purposes specified in the Act. Subject to the power by resolution to cease to demand to take a toll which can be lawfully demanded, and subject to the exemptions from tolls which are set out in Section 68, the 1959 Act contemplates that the purpose in levying tolls is to raise the revenue necessary for the purposes of the undertaking and in a manner which the Minister regards as reasonable."
Section 10 of the 1971 Act provides, so far as relevant:
"(1) If at any time –
(a) it is represented in writing to the Secretary of State –
(i) by any person or body representative of persons appearing to the Secretary of State to have a substantial interest in the use of the bridge; or
(ii) by the Board; or
(b) it appears to the Secretary of State after consultation with the Board to be expedient;
that in the circumstances then existing or in prospect (including the opening to public traffic of the bridge) all or any of the tolls authorised in pursuance of the Humber Bridge Acts or any classification of vehicles specified in any order for the time being in force under those Acts should be revised, the Secretary of State, may, if he thinks fit make an order revising all or any of such tolls or any classification of vehicles as aforesaid and may fix the date as from which such Order shall be observed until the same expires or is revoked or modified by a further Order of the Secretary of State made in pursuance of this section:
Provided that the Secretary of State shall not make an Order pursuant to paragraph (b) of this subsection at any time except when the Board have borrowed money from the Secretary of State under section 5 (Borrowing from Secretary of State) of this Act and have not repaid the whole of the money so borrowed.
(2) As...
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