Agenda item

To determine a hackney carriage vehicle renewal.

The Chair introduced the panel.

The Enforcement Officer gave a summary of the report.

The driver said he had not realised prior to his employment that the majority of his work would take place outside of Uttlesford District. Working around Sawbridgeworth was difficult because some roads were in Uttlesford and some were in East Herts. He had applied to work at Sadlers because many taxi firms do not employ drivers who already own their own cars.

In response to a Member question, the driver said he had not applied to Epping Forest District Council, as they received many applications and had closed off the application process for a few months.

At 14.00, the Committee retired to make its decision.

At 15.25, the Committee returned.

The decision was read to the driver.

DECISION NOTICE –

The application before the Panel today is for the renewal of the driver’s hackney carriage vehicle licence number HCV074 under S61 (1) (c) Local Government (Miscellaneous Provisions) Act 1976.- any other reasonable cause. The licence  expired on 31^st July and the vehicle was first licensed by UDC last year.

The driver lives in London and is a self employed owner/driver for a company called Sadlers Taxis, working from their Sawbridgworth office. All proprietors of hackney carriage vehicles are required to sign a declaration that they will predominantly work within the Uttlesford District.  

The declaration reads:

I have been advised that, based upon the decision of the High Court in the case of R. (on the application of Newcastle City Council) –v- Berwick-upon-Tweed BC, Uttlesford District Council ought not to licence Hackney Carriages which will be predominantly used outside the District.

I hereby declare that it is my intention that the vehicle/s licensed by me will be used predominantly in the District of Uttlesford and I understand that should this not be the case either at the date hereof or at any time thereafter the Council may revoke or refuse to renew the licence under section 60(1)(c) Local Government (Miscellaneous Provisions) Act 1976.

The driver most recently signed this declaration on 01 July 2019. He previously signed  it on 28 June 2018; his circumstances then were as they are now and accordingly he received a letter from the Council’s Environmental Health Manager (Commercial) drawing his attention to the declaration and advising that going forward, the Council would be requiring evidence as to his compliance with this requirement. On receipt of his renewal application, containing the same details, the Enforcement Officer became involved and on 23^rd July, requested that the driver submit details of all hackney carriage work undertaken by him since August 2018. 

This was supplied by Sadlers Taxis, and analysis of the information provided by them showed that of 1685 jobs undertaken by him for the previous year, 468 either began or ended within the District of Uttlesford.  Expressed as a percentage this amounts to 27.77% of his journeys, that is, a very little more than a quarter.

Since 1847 when the provincial hackney carriage industry first became subject to regulation by the legislature, it has been the case that the regulatory regime was intended by Parliament to be local in nature. This was reiterated as recently as 2008 when Christopher Symons QC sitting as a judge of the High Court in the case of R (ex parte Newcastle City Council ) v Berwick upon Tweed Borough Council and Others [2008]EWHC 2369 made the following observations:-

“It seems to me that the question to be asked is not whether a hackney carriage proprietor once a licence is granted would be acting lawfully but rather whether in exercising their discretion a licensing authority can use its discretion to ensure that it maintains control over those vehicles it has licensed. In my judgment a local authority, properly directing itself, is entitled, and indeed obliged, to have regard to whether the applicant intends to use the licence to operate a hackney carriage in that authority's area and also to have regard to whether in fact the applicant intends to use that hackney carriage predominantly, or entirely, remotely from the authority's area. This should result in each local authority licensing those hackney carriages that will be operating in their own area and should reduce the number of hackney carriages which operate remotely from the area where they are licensed.’

‘‘I am anxious not to direct how Berwick, or any other local authority, should exercise their discretion which must be a matter for their own judgment taking into account the need to have available safe and suitable hackney carriages and having proper regard to the safety of the public. However it would seem to me to be difficult for any local authority to justify exercising their discretion by granting a hackney carriage licence to an applicant when the authority knows that the applicant has no intention of using that licence to ply for hire in its area. This is particularly so when the local authority also knows that the intention is to use the hackney carriage in an area remote from that authority's area. I say that because it seems to me it is very difficult to exercise proper control over hackney carriages which are never, or rarely, used in the prescribed area. It is also undesirable for authorities to be faced with a proliferation of hackney carriages licensed outside the area in which they are being used and therefore not subject to the same conditions and byelaws as apply to those vehicles licensed in the area.’

 ‘In conclusion in my judgment Berwick has a discretion under section 37 of the 1847 Act to refuse to issue licences to those who have no intention of exercising their right to ply for hire in Berwick and/or to those who intend to use the vehicle predominantly in an area remote from Berwick.’

This case (Berwick) remains good law.

However, our attention has also been drawn to the decision of Kerr J in the case of R (oao Delta Merseyside Ltd and Uber Britannia Ltd) v Knowsley Metropolitan Borough Council [2018] EWHC 757. (Knowsley) This case is at the same level, namely a decision of the High Court, and postdates Berwick by ten years. We have been advised that in the event of conflict between two cases at the same level, then the later supersedes the former unless distinguishable on the facts, and though Berwick deals specifically with the licensing of hackney carriages and Knowsley with that of private hire vehicle operators, there are troubling dicta in Knowsley that suggest that licensing authorities may not restrict the freedom to earn a living.

“In my judgment Uber and Delta’s submissions are correct and KMBC is wrong. I agree with their contention that it is wrong to describe KMBC as having any discretion in the matter of determining applications for driver’s licences for PHVs. It is unfortunately part of judicial life that one frequently hears the word “discretion” lazily misused. Here, the issue of the licence is a mandatory consequence of a finding that an applicant is a fit and proper person to hold the licence.

I do not accept that the authorities relied on by KMBC justify the proposition that a person may be fit and proper to hold a licence if willing to sign up to work predominantly from Knowsley, yet unfit to hold a licence if unwilling to do so. I accept that the phrase “fit and proper” in this context refers to the personal characteristic and professional qualifications of the driver and not to his or her work preferences and visibility…….

I do not think a driver with an impeccable driving record can be fit to hold a licence if working in Knowsley yet become unfit if he or she happens to move to Cornwall. If you are fit and proper in Gateshead, you are fit and proper in Minehead. In none of the cases cited to me involving licences issued to drivers of hackney carriages or PHVs has a court ever held that issues not personal to the applicant, such as location, are relevant to determine fitness to hold a licence…..

The same is true of Delta’s fourth and last ground, which is that the policy infringes the freedom of establishment right enshrined in article 49 of the Treaty on the Functioning of the European Union. As is well known, restrictions on that right must be proportionate, ie they must pursue a legitimate aim and adopt a suitable measure for the purpose of achieving that aim, and the measure must be necessary to achieve it, such that it could not be attained by a less onerous method…..

I think it is strongly arguable that the policy imposes a disproportionate burden on licence applicants, since they would have to forego their freedom to base themselves predominantly outside Knowsley, and as I have said, the scheme of the 1976 Act permits that….

Mr Kolvin, for Uber, submitted that any such condition would offend against the Padfield principle because it would be an attempt to curtail the “right to roam” inherent in the 1976 Act….”

We are aware that the decision we take today will set a precedent as to how we licence other hackney carriage vehicles within the District.   If we grant a licence  knowing that some 75% or more of this vehicle’s work is PHV work outside of the District, it makes the requirement to sign the predominant use declaration for hackney carriage vehicle proprietors redundant and makes us potentially a target venue for non-local applicants who the Council will find it very difficult to police. This poses a very real risk to the public.

Mr Chamberlain has provided us with some additional information regarding fees and we have heard from the driver. He may have told us more than he meant to. We note that the vehicle is currently unlicensed, the previous licence having expired at the end of July. It was licensed as a hackney carriage which enables its owner to do PHV work for an operator not holding an Uttlesford operator’s licence, and we note the driver lives in London and mentioned Uber. Had the vehicle been licensed as a PHV then it could only have been driven as such while the trinity of licenses was in place and Sadlers do not, we understand, hold an Uttlesford operator’s licence. (Nor currently, do Uber operate here). That is the factual situation before us today.

Given this factual situation we have two options available to us. The driver has told us that a considerable number of traditional operators are not interested in engaging owner/drivers as such and therefore a decision not to licence his vehicle would not prevent him from earning a living, which is the principal issue lying behind the dicta of Kerr J in Knowsley. If we do grant him a new hackney carriage licence then we do so knowing that the vehicle will be used to carry out PHV work outside of Uttlesford, and the Berwick decision remains good law and is directly applicable to the vehicle; the driver cannot honestly sign the declaration contained in the application form. The question for us is therefore, which option causes the least injustice to the driver, and which poses the least risk to Uttlesford.

The legislation is clear and Berwick remains good law. We therefore have no alternative, taking into account all the circumstances, but to refuse the application for a new hackney carriage licence for WD13 ECA. The driver is not prevented from working as a PHV driver and thereby earning a living – he is not obliged to be an owner/driver – and there is nothing to prevent him from applying to the authority issuing Sadler’s Sawbridgeworth operator’s licence for the vehicle: in the meantime we gather it would be possible for him to drive one of their vehicles.

We make this decision with regret but we are aware that the intention of the legislature was to ensure local oversight of hackney carriage licensing. The driver has a right of appeal to the Magistrates Court against this decision, exercisable within 21 days, and he will receive a letter from the Legal Department explaining this.

The meeting ended at 15.40.