Delta Merseyside Ltd v Knowsley Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 07 February 2018 |
| Neutral Citation | [2018] EWHC 757 (Admin) |
| Docket Number | Case No. CO/2817 and 2828/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 February 2018 |
Neutral Citation Number: [2018] EWHC 757 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
1 Bridge Street West
Manchester M60 9DJ
Mr Justice Kerr
Case No. CO/2817 and 2828/2017
The Queen on the Application of
Mr Gerald Gouriet QC and Mr Charles Streeten (instructed by Aaron & Partners) appeared on behalf of the First Claimant.
Mr Philip Kolvin QC and Mr John Fitzsimons (instructed by DLA Piper UK LLP) appeared on behalf of the Second Claimant.
Mr Leo Charalambides (instructed by Legal Services, Knowsley Metropolitan Borough Council) appeared on behalf of the Defendant.
I will call the claimants in these two judicial review claims “Uber” and “Delta”. They are providers of private hire vehicles (PHVs). The defendant is the local authority for the controlled district, as it is known, of Knowsley in Merseyside, which is one of five such districts in the Merseyside area. I will call the defendant “KMBC”. It has, like all local authorities in England except Plymouth City Council, passed a resolution adopting the provisions relating to PHVs in Part II of the Local Government (Miscellaneous Provisions) Act 1976 (the 1976 Act), applying those provisions in its area. Uber and Delta are unhappy about a policy document adopted by KMBC in March 2017 and, in these two claims brought by permission of His Honour Judge Davies, seek an order quashing that document.
The broad effect of the policy is to require applicants for PHV driver's licences to commit themselves to driving their PHVs predominantly in Knowsley. The policy was adopted to meet a concern that PHV drivers were applying for licences from KMBC without any intention of doing their PHV driving there. Uber and Delta both hold operators' licences issued by KMBC. They also hold such licences issued by other local authorities. In Uber's case, bookings are made using an appropriate on a smart phone or other device. In Delta's case, it takes bookings in that way and also by telephone. The customers are picked up by a PHV driver, licensed as such by KMBC, in a PHV vehicle also licensed by KMBC. The pick-up and drop-off may be within or outside the area of Knowsley, the controlled district for which KMBC is the local authority.
In 2016, KMBC noticed an increase in the number of applications for PHV driver's licences, which was putting a strain on its ability to process them. On 6 January 2017, KMBC emailed taxi and PHV companies saying it was suspending consideration of driver's licence applications. On 24 January 2017, Mr Paul McLaughlin of Delta complained about the suspension in a detailed letter, which included, in an attempt to negotiate a way forward, the observation at paragraph 29 of the letter:
“If the council is proposing to amend its policies Delta expects to be consulted on this and would expect the suspension to be lifted whilst this review is being undertaken. To be clear, our client would not object to a condition being inserted to say that Knowsley drivers must predominantly carry out bookings within Merseyside”.
On 30 January 2017, KMBC lifted the suspension but changed its practice by requiring applicants to sign a declaration in the following terms:
“I, as the applicant declare and confirm that I understand that if I am found to be working wholly or mainly remote from the Knowsley prescribed distance then my licence status may be reviewed and also possibly suspended or revoked on grounds of reasonable cause having been given in that I will have been avoiding the statutory principle of local licensing as set out in the 1976 Act.”
The new application pack, from which the declaration just quoted comes, also contained a summary of KMBC's policy with a hyperlink to the full policy. The summary included:
“The council's main considerations when determining applications must be the protection and safety of the public and retaining local control of licensing”.
On or about 8 February 2017, KMBC started a four week consultation, the purpose of which was announced in an email to operators in associations active in the local PHV and taxi transport industry. It included the following:
“The council has commenced a 4 week consultation on the principle of introducing an intended use policy similar to those many councils adopted for hackney carriage use.
This is in response to the allegations that certain applicants are obtaining licences from Knowsley with the intention to work mainly or solely remote from the Knowsley prescribed distance and neighbouring areas and are therefore acting in a manner inconsistent with the statutory purposes of licensing as laid out in the relevant Acts of Parliament as defined by case law”.
Delta continued to complain during the consultation process and instructed solicitors. The issue came before KMBC's licensing committee on 20 March 2017. The recommendation was that the council should adopt a new “Appendix A” to the relevant officer's report. Appendix A, which I will call “the policy”, is document which Uber and Delta ask this court to quash or declare unlawful. It includes the following relevant features. For new applications, as “guidance” to applicants, it stated:
“Applications for the grant of a new private hire drivers licence will be expected to demonstrate a bona fide intention to predominantly carry out private hire work via their chosen Knowsley licensed private hire operator within the controlled district or as permitted by s.55A of … [the 1976 Act] …”.
Further on, the document stated at (vi):
“If a driver obtains a licence in Knowsley, he must operate predominantly in Knowsley; otherwise his licence may be refused or revoked”.
That was followed by a bullet point and the following text:
“With the above in mind there will be a presumption that applicants who do not intend to work predominantly within the prescribed area, or cannot demonstrate an ability to work predominantly within the prescribed area, will not be granted a private hire or hackney carriage drivers licence”.
There were further passages dealing with renewals and revocation of licences in similar vein, through which I need not go in detail. There was then mention of “exceptional circumstances”, and the document stated that:
“Each application will be decided on its merits. However the presumptions [sic] that the applicant has a bona fide intention to predominantly carry out private hire work via their chosen Knowsley licensed private hire operator within the prescribed area will be rebuttable only in exceptional circumstances”.
The document went on to state that it was not possible in advance to define what might amount to exceptional circumstances.
At the end of the document, the reasons for the policy were set out and these included reference to the statutory regime, including the 1976 Act, and also to:
“[t]he guidance given by the High Court in its judgment and the Declaration made in the case of Newcastle City Council v Berwick upon Tweed Council [2008] in respect of hackney carriage drivers fulfilling private hire bookings in another district”.
Such was the policy document which Uber and Delta ask this court to quash.
I should explain that the reference to the Newcastle case was to the judgment of Christopher Symons QC (sitting as a Deputy Judge of the High Court) in R (Newcastle City Council) v Berwick-upon-Tweed Borough Council [2009] RTR 34. Taxi drivers, i.e. drivers of hackney carriages not PHVs, were licensed to apply for hire in Berwick only; they were not licensed to ply for hire in Newcastle. They went up to Newcastle and took prebooked customers there. They were not caught by the 1976 Act because their vehicles were not PHVs. A vehicle is either a hackney carriage or a PHV, it cannot be both at the same time.
Their work carrying passengers therefore fell between the two regimes and was unregulated. Newcastle argued unsuccessfully that it was unlawful for Berwick to license the proprietors of hackney carriages unless it was satisfied that their drivers did not intend to exploit this loophole. However, the judge did say that Berwick had a discretion under section 37 of the Town Police Clauses Act 1847 whether to issue a licence to the proprietor and that it should not exercise that discretion in a case where the authority knew that the driver intended to operate unregulated outside the area covered by the licence.
Returning to this case, on 20 March 2017 the committee debated the issue. I have a note prepared by Uber of the discussions. It was made clear at the meeting that the issue the new policy was designed to meet was one that related to Uber only and not to other operators such as Delta. The issue was, according to the note, that KMBC were only interested in “targeting the drivers who were coming to Knowsley and then never darkening our doorstep again”. There was also some discussion at the meeting of exactly what was meant by “predominantly”, referring to drivers having to do their driving “predominantly in Knowsley”.
The committee decided to adopt the policy, which was described in the minutes as an amendment to the main current hackney carriage and private hire driver policy. The amendment to the policy which KMBC resolved to adopt was, “approved for all new [and] existing private hire and hackney carriage drivers licensed in Knowsley”.
The current declaration used by KMBC which applicants for licences are required to sign includes the following:
“I … hereby declare that I do not now or in the future intend to work mainly or solely remotely from the Knowsley district and adjacent authorities. I further declare that I understand that if I am found in the future to be working mainly or solely in an area remote from...
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