R (on the application of Abdul Rehman, on behalf of the Wakefield District Hackney Carriage and Private Hire Association) v The Council of the City of Wakefield
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Mr Justice Lavender,Sir Terence Etherton MR |
| Judgment Date | 10 December 2019 |
| Neutral Citation | [2019] EWCA Civ 2166 |
| Date | 10 December 2019 |
| Docket Number | Case No: C1/2019/0041 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 2166
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
HHJ Saffman (sitting as a Judge of the High Court)
[2018] EWHC 3664 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lady Justice King DBE
and
Mr Justice Lavender
Case No: C1/2019/0041
and
Sarah Clover and Ben Dylan Williams (instructed by Wakefield Council Legal Services) for the Appellant
Gerald Gouriet QC and Charles Streeten (instructed directly) for the Respondent
Leo Charalambides (instructed by Shelagh O'Brien, LGA) made written submissions on behalf of the Intervener
Hearing date: 26 November 2019
Approved Judgment
Sir Terence Etherton MR, Lady Justice King and
The issue on this appeal is whether the appellant council (“the Council”) acted unlawfully when it resolved to fix the fees for vehicle licences for hackney carriages, which we will call taxis in this judgment, and private hire vehicles, often called minicabs, at an amount which included recovery of all or part of the cost of supervising the conduct of drivers licensed to drive such vehicles and, if not, whether such costs may be taken into account in setting the fee for drivers' licences.
The appeal is from the order dated 5 December 2018 of His Honour Judge Saffman, sitting as a Judge of the Administrative Court of the Queen's Bench Division of the High Court, which, among other things: (1) allowed the claim of the respondent, Abdul Rehman, acting on behalf of the Wakefield District Hackney Carriage and Private Hire Association (“the Association”), for judicial review of a resolution of the Council's Licensing Committee on 24 January 2018 adopting proposed fees for licences for private hire vehicles and for hackney carriages, for licences for drivers of such vehicles and for licences for operators of private hire vehicles, and (2) declared that certain specified misconduct of drivers “cannot be lawfully charged” under section 70 of the Local Government ( Miscellaneous Provision) Act 1976 (“the 1976 Act”), and (3) quashed the Council's resolution.
Mr Rehman is the chairman of the Association. The Association represents the interests of proprietors and drivers of taxis and private hire vehicles and also operators of private hire vehicles. It has some 600 members, the majority of whom are local to Wakefield.
The licensing regime for taxis and private hire vehicles
The past and present licensing regime for taxis and private hire vehicles was helpfully summarised by Hickinbottom J (as he then was) in Blue Line Taxis (Newcastle) Ltd v Newcastle Upon Tyne City Council [2012] EWHC 2599 (Admin), [2013] RTR 8, and R (Cummings) v Cardiff City Council [2014] EWHC 2544 (Admin). We gratefully base the following description on his summary.
So far as relevant to this appeal, there are two types of car available for hire to transport passengers: taxis and private hire vehicles. Among the differences between them are that a taxi may be hired by pre-booking or “plying for hire” (that is, soliciting or waiting for passengers on the street without prior booking) whereas private hire vehicles can only be hired by pre-booking. Further, private hire vehicles can only undertake work through a separately licensed operator, and a booking can only be made through that operator.
There are separate legislative and regulatory regimes for taxis and private hire vehicles in London, on the one hand, and outside London, on the other hand. This appeal is only concerned with the position outside London and so it is not necessary to describe the regime applicable in London.
Outside London taxis are regulated by the Town Police Clauses Act 1847 (“the 1847 Act”) as amended and supplemented by the Local Government (Miscellaneous Provisions) Act 1976. The 1847 Act provides for the licensing by local authorities of taxis (section 37) and taxi drivers (section 46). Only a licensed taxi, driven by a licensed driver, is permitted to ply for hire. The original terms of section 46 provided for a fee of one shilling for such a taxi driver's licence. The Local Government, Planning and Land Act 1980 (“the 1980 Act”) Schedule 6 paragraph 1 amended section 46 of the 1847 Act so as to provide for the charging of “such fees as the commissioners may determine shall be paid” for the driver's licence.
Part II of the 1976 Act regulates both taxis and private hire vehicles. Private hire vehicles were not regulated until Part II of the 1976 Act came into force. So far as concerns taxis governed by the 1847 Act, section 45 of the 1976 Act provides that the other provisions of Part II of the 1976 Act will come into force if the council for the relevant area pass a resolution to that effect. Such a resolution has been passed by the appellant Council. We were informed that all other councils outside London have also passed such a resolution. The 1847 Act, therefore, continues to apply in the Wakefield district subject to the provisions of Part II of the 1976 Act.
We discuss the structure and relevant provisions of Part II of the 1976 Act in the Discussion section below. For the present, it is sufficient simply to say that Part II contains, among other things, provisions prohibiting the use, driving or operating of a private hire vehicle without the requisite vehicle, driver's or operator's licence, provisions for the grant, suspension and revocation of such licences, and provisions relating to taxis, taxi proprietors, taxi licences under the 1847 Act and taxi drivers.
The critical provisions of Part II of the 1976 Act which lie at the heart of these proceedings and of this appeal are sections 53(2) and 70(1) and (2), which concern respectively the fees chargeable for the grant of drivers' licences for taxis and private hire vehicles and the fees chargeable for vehicle and operators' licences. Those provisions are as follows:
“53 Drivers' licences for hackney carriages and private hire vehicles.
(1) …
(2) Notwithstanding the provisions of the Act of 1847, a district council may demand and recover for the grant to any person of a licence to drive a hackney carriage, or a private hire vehicle, as the case may be, such a fee as they consider reasonable with a view to recovering the costs of issue and administration and may remit the whole or part of the fee in respect of a private hire vehicle in any case in which they think it appropriate to do so.”
(3) …
(4) …”
“70 Fees for vehicle and operators' licences.
(1) Subject to the provisions of subsection (2) of this section, a district council may charge such fees for the grant of vehicle and operators' licences as may be resolved by them from time to time and as may be sufficient in the aggregate to cover in whole or in part—
(a) the reasonable cost of the carrying out by or on behalf of the district council of inspections of hackney carriages and private hire vehicles for the purpose of determining whether any such licence should be granted or renewed;
(b) the reasonable cost of providing hackney carriage stands; and
(c) any reasonable administrative or other costs in connection with the foregoing and with the control and supervision of hackney carriages and private hire vehicles.
(2) The fees chargeable under this section shall not exceed—
(a) for the grant of a vehicle licence in respect of a hackney carriage, twenty-five pounds
(b) for the grant of a vehicle licence in respect of a private hire vehicle, twenty-five pounds; and
(c) for the grant of an operator's licence, twenty-five pounds per annum;
or, in any such case, such other sums as a district council may, subject to the following provisions of this section, from time to time determine.
(3) …
(4) …
(5) …
(6) …”
The background facts
On 24 January 2018 the Council resolved to approve the fee to be charged from 1 February 2018 for a vehicle licence and an operator's licence in respect of taxis and private hire vehicles. In setting the fee for the vehicle licence the Council took into account, as “costs in connection with the control and supervision of hackney carriages and private hire vehicles” within section 70 of the 1976 Act, the costs incurred by the Council in monitoring and undertaking enforcement action against drivers for such things as speeding, smoking in the taxi, dressing inappropriately, parking badly, using a mobile phone, carrying excess passengers, not permitting the carrying of an assistance dog, and various other uncivil and illegal conduct (which were called by HHJ Saffman, and have been called by the parties, “the Activities”).
The Council quantified the fee in that way in the belief, having undertaken extensive consultation and sought the advice of lawyers, that such costs could not lawfully be recovered through the driver's licence fee under section 53(2) of the 1976 Act but that Parliament's policy was that the licensing regime should be self-financing; and so the Council could and should provide for the recovery of such costs through the scheme rather than leaving it to be borne by the general body of Wakefield council tax payers, and the only appropriate way to do so was by means of the vehicle licence fee.
The proceedings
The Association, acting by Mr Rehman, filed its judicial review claim form on 29 March 2018. It sought judicial review of two resolutions passed by the Council's Licensing Committee on 24 January 2018, namely the fees decision which is the subject of this appeal and a decision amending the Council's taxi and private hire vehicles standards. Mr Rehman's Statement of Facts and Grounds of Claim...
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