Eventech Ltd (Claimant) The Parking Adjudicator (Defendant) London Borough of Camden and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Burton |
| Judgment Date | 11 July 2012 |
| Neutral Citation | [2012] EWHC 1903 (Admin) |
| Date | 11 July 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO 10424/2011 |
[2012] EWHC 1903 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Burton
Case No: CO 10424/2011
Ms Marie Demetriou QC and Ms Kelyn Bacon (instructed by Maitland Walker LLP) for the Claimant
Mr Martin Chamberlain and Ms Sarah Love (instructed by Transport for London) for the Second Interested Party
Hearing dates: 19, 20 and 21 June 2012
The Claimant company, Eventech Ltd, is an associated company of Addison Lee plc ("Addison Lee") which operates a fleet of private hire vehicles ("PHVs")—colloquially known as minicabs—in Greater London, and is the registered keeper of all Addison Lee's PHVs, which are leased out by Addison Lee to self-employed drivers.
Addison Lee is the operator, licensed by Transport for London ("TfL") pursuant to the Private Hire Vehicles (London) Act 1998 ("the 1998 Act"), of some 2900 minicabs, the largest fleet of PHVs in Greater London.
TfL is a statutory body created by the Greater London Authority Act 1999 ("the 1999 Act"). It has the function, by ss141 and 154 of the 1999 Act, of promoting and encouraging safe, integrated, efficient and economic transport facilities and services to, from and within London. Its duties include securing the provision of public passenger transport services (including bus services) to, from or within Greater London. TfL is also by s121A(1A) of the Road Traffic Regulation Act 1984 ("the 1984 Act") the traffic authority for every Greater London Authority ("GLA") road and, as such, has responsibility for the designation of bus lanes on those roads. The GLA roads account for 5% of London's roads, but for 38% of its bus lanes, being situated in those parts of central and inner London where congestion is heaviest and where buses (carrying 5.8 million passengers every weekday) are most likely to be affected by traffic congestion. TfL is also responsible, pursuant to ss253 and 254 (and Schedules 20 and 21) of the 1999 Act, for all licensing and monitoring activities in relation to minicabs and to hackney carriages. The latter is the historical and statutory term (derived, it seems, from the London village of Hackney, famed for its horses and horse-drawn carriages) for what are now commonly known as taxis or 'black cabs'.
The issue in this case arises between the Claimant, for whom Marie Demetriou QC has appeared with Kelyn Bacon, and TfL as Second Interested Party, represented by Martin Chamberlain and Sarah Love. It consists of a challenge by the Claimant to the policy of TfL and London boroughs whereby, whereas black cabs are permitted to drive in most London bus lanes, minicabs are permitted to drive in none during their hours of operation, save to pick up or set down pre-booked passengers ("the Bus Lane Policy"). Such policy is claimed by the Claimant to offend against the European Union (EU) right of freedom to provide services (Article 56 of the Treaty on the Functioning of the European Union as consolidated ("TFEU")) and of freedom of establishment (Article 49 TFEU) and/or the EU general principle of equal treatment, to be Wednesbury unreasonable at common law and/or to amount to favourable treatment of black cabs as against minicabs, such as to constitute unlawful State Aid, contrary to Article 107 TFEU.
The challenge arises out of two penalty charge notices ("PCNs"), issued on 13 and 20 October 2010, against the Claimant, in respect of the use of a PHV owned by the Claimant in the Southampton Row bus lane, issued by the London Borough of Camden, which was taken to appeal by the Claimant before the Parking Adjudicator. Before the Parking Adjudicator, the Claimant challenged the validity (on the above basis) of Article 3 of the Camden Bus Lanes (No 1) Traffic Order 2008 ("the Camden Order"). The Parking Adjudicator concluded that he did not have jurisdiction to disapply Article 3, and was not required to determine a potential conflict of domestic and EU law, but was only permitted to enforce the Order, and handed down his Decision dismissing the appeal on 16 August 2011. This application was issued by the Claimant on 16 December 2011, and permission to apply for judicial review was granted by Mr Michael Kent QC, sitting as a deputy judge, on 2 March 2012.
Neither the Parking Adjudicator (joined as Defendant) nor the London Borough of Camden (First Interested Party) has taken any part in these proceedings, which have been defended by TfL as Second Interested Party. It is common ground between the parties before me, and rightly so, that the Parking Adjudicator erred in his approach, and that, as an emanation of the State, such a tribunal should have considered the Claimant's arguments as to the validity of the Camden Order under both EU and domestic law. Accordingly, to that extent, it is in any event the case that the decision of the Defendant Parking Adjudicator cannot stand, and that this Court is obliged to consider the validity of the Camden Order in these proceedings. The parties have agreed that any submissions on remedy be held over until after the Court has determined the issues as to validity.
A traffic authority responsible for a particular road has the power to restrict traffic on that road, or part of it, to certain types of vehicles, and thus to designate bus lanes, under s6 of the 1984 Act, and under that section the Camden Order was adopted, which designated a number of bus lanes, including the Southampton Row bus lane. Article 3(1) of the Camden Order prescribes as follows:
"No person shall cause a vehicle to be in a bus lane in any length of road specified in an item in Column (2) of the table in the schedule to this order during the time specified in that item in Column (3) of that item unless that vehicle was proceeding in the direction specified in Column (4) of that item and is of a type specified in Column (5) of that item."
The Schedule to the Camden Order specifies that the Southampton Row bus lane is available to a vehicle that is a bus, a Dial-a-Ride bus, a pedal cycle or a "taxi". Article 2 of the Order specifies that the word taxi has the meaning given in the Traffic Signs Regulations and General Directions 2002 ("the 2002 Regulations").
It is therefore to those Regulations that one must look for a definition of the taxi thus permitted to use the Bus Lane, and that is contained in Regulation 4 of the 2002 Regulations, so far as England and Wales is concerned by subclause (a), as:
"A vehicle licensed under—
(i) s37 of the Town Police Clauses Act 1847; or
(ii) Section 6 of the Metropolitan Public Carriage Act 1869 ["the 1869 Act"]; or under any similar enactment."
Those sections referred to hackney carriages that are licensed to ply for hire. Black cabs are licensed under the provisions set out in the London Cab Order 1934 ("the London Cab Order"), adopted pursuant to the 1869 Act, which provides, in s8(2), that no hackney carriage "may ply for hire" within the Metropolitan Police District and the City of London unless under the charge of a driver licensed under s8, now by TfL. Thus, only a black cab, licensed under the London Cab Order, is permitted to "ply for hire" in London. There is no statutory definition of those words, but at common law it is interpreted (see Sales v Lakes and others [1922] 1 KB 553 at 557–558 per Lord Trevithin CJ), as meaning soliciting or waiting for passengers without a prior booking. Thus, although black cabs can be pre-booked (and according to a 2009 survey 8% of black cab journeys are indeed pre-booked), only black cabs can be hailed from the road or wait in taxi ranks for a pick-up.
Minicabs are thus not taxis for the purpose of the 2002 Regulations. They are licensed separately under the 1998 Act, are not permitted to ply for hire in London and may only take passengers who have pre-booked through the operating centre specified in the relevant licence.
There are approximately 23,000 black cabs licensed by TfL. The licensing regime, contained primarily in the 1869 Act and the London Cab Order, requires compliance by the registered keeper of a black cab with detailed standards set out in the London Cab Order and prescribed by the Conditions of Fitness 2007 (as amended). There are approximately 50,000 minicabs and 60,000 individual drivers licensed by TfL, primarily pursuant to the 1998 Act.
It is important at this stage to set out the material differences between mini-cabs and black cabs. A Law Commission Consultation Paper issued earlier this year (No 203) described the "two-tier licensing system" justified by "the very different characteristics" of the pre-booked market and the market for hailing and picking up at ranks:
i) As set out in paragraph 9 above, only black cabs can 'ply for hire' without pre-booking.
ii) Black cabs are subject to "compellability", dating from the London Hackney Carriage Acts 1831 and 1853, which requires that where a black cab at a rank or in the street accepts a passenger, the taxi must take the passenger anywhere that he wishes to go, within a prescribed distance or up to a prescribed journey time. There is no such 'cab rank' obligation on a minicab.
iii) Black cabs are instantly recognised by reason of their shape and size and the illuminated TAXI sign. This is because they must comply with the Conditions of Fitness ("CoF"), which contain a number of standards (including the requirement for the illuminated sign). Currently only two vehicle makes comply with the CoF....
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United Trade Action Group Ltd v Transport for London
...permitted to travel along bus lanes, whilst private hire vehicles have not. 118 In Eventech Ltd v The Parking Adjudicator & Ors [2012] EWHC 1903 (Admin), which concerned a challenge by private hire vehicles to the policies operated by TfL and the London Boroughs which permitted taxis to tr......
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United Trade Action Group Ltd v Transport for London
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