R Mark Ian ROYDEN v The Metropolitan Borough of WIRRAL
| Jurisdiction | England & Wales |
| Judgment Date | 18 October 2002 |
| Neutral Citation | [2002] EWHC 2484 (Admin) |
| Docket Number | CO/2348/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 October 2002 |
[2002] EWHC 2484 (Admin)
IN THE HIGH COURT OF JUSTICE
The Royal Courts of Justice
The Strand
London WC2A 2LL
Sir Christopher Bellamy QC
(Sitting as a Deputy High Court Judge)
CO/2348/2002
Richard Clayton QC, instructed by Messrs Bindman & Partners, 275 Gray's Inn Road, London WC1X 8QB, appeared on behalf of the claimant
Richard Humphreys, instructed by Messrs Sharpe Pritchard, Elizabeth House, Fulwood Place, London WC1V 6HG, appeared on behalf of the defendant
Introduction
1. The claimant, Mark Ian Royden, is the proprietor of a hackney carriage which is licensed by the defendant, the Metropolitan Borough of Wirral, under section 37 of the Town Police Clauses Act 1847, as amended, to ply for hire within that Borough. A “hackney carriage” in this context is a taxi which is entitled to ply for hire, or wait at a taxi rank, as distinct from a private hire taxi which has to be booked by prior reservation, in this case by telephone.
2. In these proceedings Mr Royden seeks judicial review of the decision of the defendant, made on 18 March 2002, to modify its previous policy and remove forthwith the pre-existing limit on the number of vehicles licensed as hackney carriages under the Act of 1847 within the area of the Metropolitan Borough of Wirral.
3. Mr Royden is also Secretary of the North West 6/584 Taxi Section Wirral Branch of the Transport and General Workers’ Union. His original claim, lodged on 16 May 2002, was made on his own behalf. Amended grounds of claim lodged on 8 August 2002 state that Mr Royden also brings his claim on behalf of 52 members of his branch who, it is contended, are similarly affected by the defendant's decision. In the claimant's skeleton argument it is stated that the claim is now made on behalf of 91 branch members. The names of the members concerned do not appear on the papers before the Court.
4. The defendant does not object to the claim being amended to state that Mr Royden also brings his claim in a representative capacity, at least as far as the issues of law are concerned, but submits that, on factual issues, it is only Mr Royden's personal situation that is relevant. In these somewhat untidy circumstances, I propose to treat Mr Royden's claim as also made on behalf of those members of his branch of the Transport and General Workers’ Union who object to the defendant's decision of 18 March 2002. However, I have no evidence about the position of other branch members, other than what appears from the bundles before the Court.
5. The grounds of the claim are, in brief summary, (1) a failure to consult; (2) a failure to obtain, or take account of, necessary relevant information as to the state of demand, bearing in mind Article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms (“ECHR”); (3) an unlawful interference with the claimant's property rights under Article 1 of the First Protocol to the ECHR; and (4) a failure to give adequate reasons.
Background
The Act of 1847 as amended
6. Until 1985, section 37 of the Town Police Clauses Act 1847 provided, so far as relevant, that “the commissioners” – now the licensing authority for the area concerned – “may from time to time licence to ply for hire … such number of hackney coaches or carriages … as they think fit.”
7. Section 16 of the Transport Act 1985 amended section 37 of the Act of 1847 with respect to hackney carriages. The effect of those amendments is (a) to omit the words “such number of” and “as they think fit” from section 37; and (b) to add to section 37 a proviso that
“the grant of a licence may be refused, for the purposes of limiting the number of hackney carriages in respect of which licences are granted, if, but only if, the person authorised to grant licences is satisfied that there is no significant demand for the services of hackney carriages (with the area to which the licence would apply) which is unmet.”
8. The effect of section 37 of the Act of 1847, as amended, is thus that the licensing authority may, from time to time, license hackney carriages to ply for hire, provided that the grant of a licence may be refused, for the purposes of limiting the number of hackney carriage licences granted, if, but only if, the licensing authority is satisfied that, within the relevant area, “there is no significant demand for the services of hackney carriages … which is unmet”.
The situation up to 1998
9. Prior to its decision of 18 March 2002 the defendant's policy was to limit the number of hackney carriage vehicle licences which it issued. From 1974 onwards, the number of licences issued for the Borough was 86. In 1991, a decision by the defendant refusing to issue ten further licences for hackney carriage vehicles was appealed to the Crown Court at Liverpool. The Crown Court found that there was an unmet demand within the meaning of the Act of 1847 and ordered the ten further licences to be issued. After various procedural complications that case, and another parallel case, were appealed by way of case stated to the High Court. In March 1995 the High Court held that Liverpool Crown Court should not itself have ordered the grant of further licences, but should have remitted the matter to the defendant to decide the applications for further licences in the light of the Crown Court's decision on the question of unmet demand. The decision of the High Court was upheld by the Court of Appeal in May 1996, and leave to appeal to the House of Lords was refused in October 1996.
10. Following that litigation, and consultation with the trade and other interested parties, the defendant received applications for 76 further licences. In June 1997, the defendant increased the number of hackney carriage vehicle licences issued by 15, thus making 101 licences in total. Once again, a number of the unsuccessful applicants for further licences appealed to the Crown Court. The Crown Court again found that there was unmet demand under the Act of 1847, and remitted the matter back to the defendant to decide on the grant of further licences.
The Maunsell Report
11. Following that decision by the Crown Court, the defendant commissioned a survey by a firm of consultants, Maunsell Transport Planning, whose report of over 100 pages is dated 28 October 1998. The Maunsell Report's conclusions under the heading “Executive Summary”, at pages (iv) to (v), are expressed in these terms:
“Taking all evidence into account, the Study concludes that there is NO SIGNIFICANT UNMET DEMAND for the services of hackney carriages in the Wirral at the present time. Current case law makes it clear that the significant queues and waits on Friday and Saturdays at night clubs are not sufficient to constitute significant unmet demand over the full time period.
However, the overall hackney carriage market in Wirral has become distorted over time, and has seen a larger than usual growth of the private hire vehicle industry. The hackney carriage operation relies heavily on rank-based work. Just one radio circuit exists and there are no mixed hackney/private hire fleets as exist in other areas of England and Wales.
Hackney services tend to be limited to the Liscard and Birkenhead areas and many outer area ranks, though potentially viable (as evidenced by relatively large nearby private hire bases), remain unserved. A major concern is that there is no easy way for the disabled to obtain a service relevant to their needs. The impossibility of undertaking the proposed wheelchair user survey arose because just two phone numbers could be used to request a wheelchair accessible vehicle. Improvements to external (telephone book) and on-vehicle advertising for hackneys have been suggested.
Evaluation of the current observed structure of both hackney carriage and private hire industries suggests the need for policy revision and issue of further plates to ensure the provision of the type of service required by customers in the Wirral. Improved training for drivers and standards for both hackney and private hire vehicles are needed.
To ensure the hackney carriage trade has opportunity to develop steadily and firmly in rising to its full potential, the Consultant recommends issue of a further 25 plates. The effect of these must be monitored to allow further tranches to be released if this is proven necessary for market development.”
12. Under the heading “Findings of the Study” the Maunsell Report stated at paragraphs 7.3 and 7.4:
“7.3 The present hackney operation relies very heavily on traditional rank-based work. Only one radio network exists, and although it has nearly half of the vehicle fleet attached, the Consultant understand the bulk of its work remains from the ranks. The fleet remains in the hands of mainly single owner/drivers, and there are no company-style operations.
7.4 Rank work is also concentrated on just five ranks of the current 32. Despite some being in relatively good locations, very little use is made of ranks beyond Birkenhead or Liscard centres. There are few direct links between trains or buses and taxis.”
13. The Maunsell Report elaborated on the question of market distortion at paragraphs 7.9 to 7.12:
“7.9 Although it can be argued that the current service to the current key ranks is relatively good, the evidence of unused ranks, a desire of passengers for service at some of these, and for the hackney vehicle, and the significant shortage of service to night club areas suggests that taken overall, there is a severely distorted market for hackney services in the Wirral. Evaluation of the...
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