Licensing Barristers Judicial Review Success

Trinity licensing barrister, Charles Holland, was instructed by Lancaster City Council in a Judicial Review hearing that took place on 11th April 2013 at the Administrative Court in Manchester. Wilcock v Lancaster City Council [2013] EWHC 1231 (Admin) considered the scope of s.68 Local Government (Miscellaneous Provisions) Act 1976 and its interrelation with s.60 of the Act. 

The statutory provisions 

s.60 provides for the suspension and revocation of vehicle licences: 

(1) Notwithstanding anything in the Act of 1847 or in this Part of this Act, a district council may suspend or revoke, or (on application therefor under section 40 of the Act of 1847 or section 48 of this Act, as the case may be) refuse to renew a vehicle licence on any of the following grounds:— 
(a) that the hackney carriage or private hire vehicle is unfit for use as a hackney carriage or private hire vehicle; 
(b) any offence under, or non-compliance with, the provisions of the Act of 1847 or of this Part of this Act by the operator or driver; or 
(c) any other reasonable cause. 
(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. 

S.68 provides: 

Fitness of hackney carriages and private hire vehicles. 
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. 

Where a suspension notice is issued under s.68 there is no right of appeal against the suspension of the vehicle pending improvements required in the notice. It is only if the licence is deemed to be revoked after the expiry of a 2 month period that a right of appeal arises under s.60(2) and (3). This is to be contrasted with a suspension under s.60, where there is a right of appeal. Rights of appeal themselves give rise to an automatic stay pursuant to s.77 of the Act. 

Each section refers to unfitness, and it has been suggested that the overlap between the 2 sections is something of an anomaly. 

Facts 

The Claimant sought judicial review of the Defendant local authority’s decision on 7/11/12 to issue a notice under s.68 LG(MP)A 1976 requiring her hackney carriage vehicle to be made available for further inspection and testing on or before 6/1/13 and suspending the vehicle’s licence until such time as the Defendant was satisfied with its fitness. The vehicle displayed unauthorised signage which it was conceded were in breach of the Defendant’s own conditions, which restricts what signage can be put on hackney carriages (there being a similar condition relating to private hire vehicles). The s.68 notice related to this unauthorised signage. 

The signage in question had been applied to the vehicle by the dealer who sold it, and consisted of the word “TAXI” under each headlight, on each rear door, in each rear side window, and on each rear pillar. It had been presented to the Defendant in this condition when first licensed in 2008, and a series of certificates of compliance had been issued by the Defendant between then and 2012 without any point being taken, the last certificate in time being issued on 6/6/12 and expiring on 7/12/12. In mid 2012 complaints had been made to the Defendant from other drivers as to a proliferation of signage of this nature, and at a meeting of its local “Taxi Liaison Group” in July 2012, attended by representatives of the trade, the Defendant had indicated that it would seek to enforce its conditions as to signage more rigorously in future. 

The Claimant’s vehicle was subject to a spot check on 31/10/12 where a non-statutory “defect” notice was given requiring the vehicle to be re-presented without the unauthorised signage. The Claimant refused to remove the signage, leading to the issue of a notice under s.68 on 7/11/12. The Claimant obtained an injunction against the suspension pending the determination of her application for judicial review which was heard by HHJ Waksman QC on 11/4/13. 

The grounds for Judicial Review 

Broadly, the Claimant advanced 3 arguments to the Court: 

(1) the suspension of her licence was in breach of a substantive legitimate expectation; 

(2) the use of s.68 LG(MP)A 1976 in place of s.60 was ultra vires; 

(3) the Defendant acted disproportionately (in human rights terms) in proceeding under s.68. 

The result 

HHJ Waksman QC (sitting as a High Court Judge), rejected all 3 grounds and dismissed the Claimant’s claim for judicial review. 

As to substantive legitimate expectation, the Claimant’s point was that a suspension notice could not be issued whilst a certificate of compliance was in existence. The Judge found that the certificate was not a clear and unequivocal representation that the Defendant’s position on compliance would not change, and that its policy would stay the same. The Judge found as a fact that it would have been very straightforward to remove the signage without damage to the vehicle (as had occurred with 8 other vehicles), and the Claimant could have done this pending a challenge to the imposition of conditions upon the renewal of her licence. 

The ultra vires argument was based on the Defendant’s choice to proceed under s.68 of the Act rather than s.60. The Claimant argued that s.68 was limited to “serious” cases where vehicles were unroadworthy. 

The Judge rejected this argument. The objectives of taxi licensing are not limited to passenger safety but include ensuring that there is some way in which those who wish to use either hackney carriages or private hire vehicles can readily distinguish one type of vehicle from another (R. v. Wirrall Metropolitan Borough Council, ex parte the Wirral Licensed Hackney Carriage Owners Association). The Defendant’s conditions were not under challenge. They ensured that vehicles presented a blank canvas on which the distinguishing signage could be seen. 

There was no reason why s.68 should be confined to cases of unroadworthiness. The virtue of s.68 was that it provided a swift and summary process to deal with and rectify breaches of condition during the currency of the licence without involving either party in difficult legal processes. 

S.68 was a different creature to s.60 in that regard. It was particularly apposite to less serious breaches of condition, which were capable of being dealt with very quickly where there was the incentive of discharging the suspension that would otherwise be in place. 

As to the Claimant’s contention that the licence was a possession for the purposes of Article 1 to the First Protocol of the European Convention of Human Rights, the judge’s strong inclination that it was not having regard to the analysis of Mr Bellamy QC in R. (on the application of Royden) v. Wirral Metropolitan Borough Council, but even if it was then the issue of a s.68 notice in these circumstances was not a disproportionate interference with any A1P1 right. 

The reading of “fitness” in s.68 is no narrower than the reading of “unfit” in s.60. 

The third ground also failed. The Court must give a margin of appreciation to local authorities as to whether to proceed under s.60 or s.68. On the facts here it was manifestly not disproportionate for the Defendant to proceed under s.68. Nor did the Defendant “jump the gun” by proceeding during the currency of the certificate of compliance. The Defendant was entitled to apply its change in policy after giving notice of that change, it had served defects notices on other proprietors without complaint being made, and it would be odd for it to have to hang back for individuals who refused to comply. 

Barrister, Charles Holland is a member of Trinity Chambers' Licensing, Judicial Review, Business, Chancery and Regulatory practice groups. Whilst operating from Trinity's Chambers in Newcastle, Charles has a nationwide client base.