Wilcock v Lancaster City Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Waksman QC |
| Judgment Date | 11 April 2013 |
| Neutral Citation | [2013] EWHC 1231 (Admin) |
| Docket Number | Case No: CO/12635/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 April 2013 |
[2013] EWHC 1231 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
His Honour Judge Waksman QC
(Sitting as a High Court Judge)
Case No: CO/12635/2012
Mr Rothschild appeared on behalf of the Claimant
Mr Holland (instructed by Lancashire CC) appeared on behalf of the Defendant
APPROVED JUDGMENT
Introduction
The claimant in this application for judicial review, Mrs Ellen Wilcock, is the holder of a Hackney Carriage Vehicle Licence granted by the defendant local authority, Lancaster City Council, to which I shall refer as "the Council". On 7 November 2012 the Council suspended that licence on the basis that the vehicle in question, a Fiat Scudo registration number PFO8 XPW, displayed unauthorised signage which was admittedly in breach of the Council's own licence conditions. A photograph of the vehicle is to be found at F/123. It is that decision to suspend which is now under challenge.
Interim relief in respect of the suspension, in effect to suspend the suspension, was granted by the court on 26 November 2012, and permission to bring this claim was granted on 4 January 2013.
The Statutory Scheme
The basic statutory scheme is this: section 47 of the Local Government (MP) Act 1976 ("the Act") governs the grant of licences for hackney carriages —that is, pertaining to the vehicle not the driver —and section 47(1) says that the Council may attach to the grant of a licence of a hackney carriage such conditions as it may consider to be reasonably necessary.
There is the basic distinction throughout the licensing scheme (which the Law Commission has recently recommended should not be changed) between the licensing and control of hackney carriage cabs on the one hand and private hire vehicles on the other, the key differences being well-known to all. Under the former, the driver can ply for hire on the public highway with a concomitant duty to pick up a fare if free; not so for private hire vehicles, and they cannot carry passengers without being pre-booked, and so on.
The Relevant Licence condition and breach provisions
The relevant conditions imposed by the Council here are to be found at F/43 to 46. The one with which I am concerned is paragraph 7, headed "Signs and notices". It says that the display of signs of hackney carriages shall be restricted to the roof and sides of the vehicle. The door signs supplied by the City Council must be affixed to the front doors. Any roof signs should be capable of illumination and be illuminated at all times. That is the only part that I need refer to.
There is no public law challenge to those conditions. The enforcement mechanisms in respect of breach of any of those conditions is to be found prima facie in two places: first of all section 60 of the Act, which says that a District Council may suspend or revoke or refuse to renew a vehicle licence on any of the following grounds including: "(a) that the hackney carriage or private hire vehicle is unfit for use as a hackney carriage or private hire vehicle". Subsection (2) says:
"(2) Where a district council suspend, revoke or refuse to renew any licence under this section they shall give to the proprietor of the vehicle notice of the grounds on which the licence has been suspended or revoked or on which they have refused to renew the licence within fourteen days of such suspension, revocation or refusal.
(3) Any proprietor aggrieved by a decision of a district council under this section may appeal to a magistrates' court."
It has been accepted before me by Mr Rothschild that if there was a breach of a licence condition, then the appropriate ground for any action by the Council would be section 60(1)(a), unfit for use; that is to say, Mr Rothschild accepts that the word "unfit" there includes a breach of any of the relevant conditions and is not limited, for example, to physical or mechanical unfitness. The second and relevant section and the one that is at the heart of the case before me is section 68. This is headed "Fitness of Hackney Carriages", and says that:
"Any authorised officer of the council in question or any constable shall have power at all reasonable times to inspect and test, for the purpose of ascertaining its fitness, any hackney carriage or private hire vehicle licensed by a district council, or any taximeter affixed to such a vehicle, and if he is not satisfied as to the fitness of the hackney carriage or private hire vehicle or as to the accuracy of its taximeter he may by notice in writing require the proprietor of the hackney carriage or private hire vehicle to make it or its taximeter available for further inspection and testing at such reasonable time and place as may be specified in the notice and suspend the vehicle licence until such time as such authorised officer or constable is so satisfied: Provided that, if the authorised officer or constable is not so satisfied before the expiration of a period of two months, the said licence shall, by virtue of this section, be deemed to have been revoked and subsections (2) and (3) of section 60 of this Act shall apply with any necessary modifications."
The effect therefore is this. Under section 68 a licence for a vehicle can be suspended for no longer than two months, and if the relevant matter is rectified before the end of that two-month period, the suspension will end then. The suspension is not capable of extension. If not rectified and two months have expired, it turns into a revocation which will then trigger a right of appeal as if under section 60(2).
The only other provision I need refer to at this stage is section 77(2), which is the general provision for appeals for the whole of the Act, which says:
"If any requirement, refusal or other decision of a district council against which right of appeal is conferred by this Act
(a) involves the execution of any work or the taking of any action; or
(b) makes it unlawful for a person to carry on business which he was lawfully carrying on up to the time of the requirement, refusal or decision;
then, until the time for appealing has expired, or, when an appeal is lodged, until the appeal is disposed of or withdrawn or fails for want of prosecution –
(i) no proceedings will be taken for any failure to execute the work…"
So at least in a number of cases where an appeal is lodged it is possible for there to be, as it were, an automatic stay.
Background Facts
So much for the basic statutory background. In this case, Mrs Wilcock purchased the vehicle from Rayrigg Motors. It is of a type and model (that is, a Fiat Scudo) which is itself approved for use as a hackney carriage. Prior to the sale Rayrigg applied what it says is a standard signage for those intending to use the vehicle as a hackney carriage, including the unauthorised signage, and it is then marketed as a "Brit Cab". The signage is admittedly in breach of the claimant's conditions of licence for hackney carriages. If one returns to the photographs, which are on page 1, the word "taxi" vertically written at the rear strut to the roof of the vehicle, and under the headlamps in page 2, but also the word "taxi" is put on the glass in the rear section of the vehicle. Finally there are the words "taxi" in the centre of the vehicle in addition to the separate caption "oneAcab". This latter sign I permitted being one sign additional to the Council's own plate (shown on the front doors). So here, all the "taxi" signs were in breach of the condition.
It would appear that, following the purchase by Mrs Wilcock of the vehicle, it was then presented to the Council for its first compliance certificate. There is some issue about the sequence of events here. I need not deal with that now, but I will refer to it in context later on.
The first certificate of compliance, which is not the licence but effectively the same as an MOT certificate, was dated 20 June and it expired on 19 June 2009. Under this scheme a certificate of compliance would last one year for the first two years but would then reduce to a period of six months, and it is stated to have been issued pursuant to, among other things, section 68 of the Act. It said that the vehicle had been examined and it certified that at the date of the examination the statutory requirements prescribed by the regulations were complied with in relation to the vehicle.
The licence conditions to which I have already referred were of course made under the relevant regulations. That was in 2008, and there were successive certificates of compliance dealing with the year from 2009 to 2010, and then a set of six-month periods. The last certificate of compliance was issued on 6 June 2012 to expire on 7 December 2012, and that is the point at which the annual vehicle licence itself would expire and would require renewal.
Two spot checks were carried out without incident on 21 April 2011 and on 1 July 2012. Throughout that period, on the Council's current case, there was in fact a breach of its signage condition by virtue of the extra signs to which I have referred, but they were not acted upon. That was reflective of its policy at the time in respect of the enforcement of that condition. But what happened was that in around the middle of 2012 the Council began to receive complaints by other licence holders, initially another hackney cab vehicle licence holder, to the effect that additional signs such as those on Mrs Wilcock's cab were proliferating. This was raised at the...
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