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Private hire operator liablities, making use of vehicles and drivers' licences issued in another District Council.

Bromsgrove District Council v Powers

QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)

HEARING-DATES: 16 JULY 1998

16 JULY 1998

COUNSEL:
J McGuiness for the Applicant; S Parry for the Respondent

PANEL: DYSON J

JUDGMENTBY-1: DYSON J

JUDGMENT-1:
DYSON J: This is an appeal by way of case stated from the decision of the Bromsgrove and Redditch Justices who, on 10 April 1997, allowed the appeal of Mr Powers against a decision of the Bromsgrove District Council ("the Council)" refusing to renew his private hire operator's licence.

The relevant facts, as found by the Justices, are as follows:


(i) Mr Powers had held a Private Hire Operator's Licence issued by the Council under the provisions of s 55 of the Local Government (Miscellaneous Provisions) Act 1976 ("the Act") since August 1998 and had operated a business as a sole trader under the trading name of Barnt Green Cars from an address within the boundaries of the Council authority; (ii) Since 18 March 1996 Barnt Green Cars did not operate any Private Hire vehicles or drivers licensed by the Council. (iii) On 12 August 1996 Mr Powers applied to the Council for the renewal of his Private Hire Operator's Licence. (iv) On 11 September 1996 the Council renewed Mr Powers'Private Hire Operator's Licence until 18 November 1996 ... (v) On 18 November 1996 the Council refused

Mr Power's application for renewal of his Private Operator's Licence and so informed him by letter dated 19 November 1996 (it was this refusal which was the subject of Mr Power's appeal to the Justices. (vi) At all material times Mr Powers and his wife were in Partnership in the neighbouring district council of Stratford on Avon, trading under the name of Chauffeur Express from premises within the boundaries of Stratford.

They held in their joint names a Private Hire Operator's licence issued by Stratford on Avon District Council under s 55 of the Act. (vii) Mr Powers held a number of vehicle licences issued to him under s 48 of the Act by Stratford on Avon District Council; (viii) Chauffeur Express employed five drivers in their Stratford business and each of these held a driver's licence issued by Stratford on Avon District Council under the provisions of s 51 of the Act; (ix) Bookings by customers of Barnt Green Cars for the hire of private hire vehicles were invited and accepted by Mr Powers within the boundaries of the Council Authority.

All such bookings were in fact sub-contracted, principally to Chauffeur Express, but also to two other Operators - one of which was within the boundaries of the Council, and the other within the boundaries of Stratford on Avon District Council. Mr Powers held s 55 licences in both districts. The Council accepted that no impropriety would be committed when

Mr Powers subcontracted within the boundaries of the Council. (x) The Council refused Mr Powers' application for renewal of his s 55 Private Hire Operator's Licence on the ground that he was not operating (as Barnt Green Cars) in accordance with the Act because he was only permitted under such a licence to make use of vehicles and drivers licensed in the same District (ie the Council's). By operating as a Private High Operator licensed by the Council, but making use of vehicles and drivers' licences issued in another District Council, Mr Powers was not acting in accordance with s 46(1)(e) of the Act."

Having summarised the submissions advanced on behalf of Mr Powers and the Council, the Justices continued as follows:

7: We upheld the appeal.

We were of the opinion that;

(i) The Respondent does not need to have vehicle and driver's licences to accompany his Operator' Licence provided he is not the owner of the vehicles used and that they and the drivers are properly licensed elsewhere.

9 We took note of the fact that ALL the work was subcontracted out.

(ii) To 'operate' means to make provision for bookings and NOT to provide vehicles or drivers. We looked at the definition of operate contained in section 80(1) in reaching this conclusion.

(iii) The Respondent had not therefore been operating incorrectly and the Appellant was not entitled to refuse to renew his licence under section 62 of the said Act.

QUESTIONS

The questions for the opinion of the High Court are:-

(1) Whether on the facts found the Justices were correct in law to hold that the Respondent, being a person who in the course of business operated private hire vehicles in the controlled district of the Appellant (and who held an Operator's Licence granted under section 55 of the Local Government (Miscellaneous Provisions) Act 1976 by the Appellant for that purpose), had not failed to comply with the provisions of section 46(1)(e) and 46(2) of the said Act when he sub-contracted bookings he had invited or accepted to other operators who fulfilled the said bookings, using drivers and vehicles not licensed by the Appellant?

(ii) Were the Justices correct in law in holding that a private hire vehicle operator, when operating in the controlled district of the Appellant under a Section 55 Private Hire Operator's Licence issued by the Appellant, was not required to make use only of vehicles and drivers licenced by the Appellant?

(iii) Whether on the facts found the Appellant was therefore entitled under the provisions of section 62 of the said Act to refuse to renew the Respondent's Operator's Licence?"

The statutory provisions, so far as material, are as follows:

46(1) Except as authorised by this Part of this Act-

...

(d) no person shall in a controlled district operate any vehicle as a private hire vehicle without having a current licence under section 55 of this Act.

(e) no person licensed under the said section 55 shall in a controlled district operate any vehicle as a private hire vehicle-

(i) if for the vehicle a current licence under the said section 48 is not in force;

or

(ii) if the drive does not have a current licence under the said section 51.

(2) If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence."

48(1) Subject to the provisions of this Part of this Act, a district council may on the receipt of an application from the proprietor of any vehicle for the grant in respect of such vehicle of a licence to use the vehicle as a private hire vehicle, grant in respect thereof a vehicle licence."

51(1) Subject to the provisions of this Part of this Act, a district council shall, on the receipt of an application from any person for the grant to that person of a licence to drive private hire vehicles, grant to that person a driver's licence."

"55(1)) Subject to the provisions of this Part of this Act, a district council shall, on receipt of an application from any person for the grant to that person of a licence to operate private hire vehicles grant to that person an operator's licence."

"56(1) For the purposes of this Part of this Act every contract for the hire of a private hire vehicle licensed under this Part of this Act shall be deemed to be made with the operator who accepted the booking for that vehicle whether or not he himself provided the vehicle.

(2) Every person to whom a licence in force under section 55 of this Act has been granted by a district council shall keep a record in such form as the council may, by condition attached to the grant of the licence, prescribe and shall enter therein, before the commencement of each journey, such particulars of every booking of a private hire vehicle invited or accepted by him, whether by accepting the same from the hirer or by undertaking it at the request of another operator, as the district council may by condition prescribe and shall produce such record on request to any authorised officer of the council or to any constable for inspection."

"62(1) Notwithstanding anything in this Part of this Act a district council may suspend or revoke, or (on application therefor under section 55 of this Act) refuse to renew an operator's licence on any of the following grounds-

(a) any offence under, or non-compliance with, the provisions of this Part of this Act."

"80(1) In this Part of this Act, unless the subject or context otherwise requires-

...

'operate' means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle;

'private hire vehicle' means a motor vehicle ... other than a hackney carriage or public service vehicle ... which is provided for hire with the services of a driver for the purpose of carrying passengers. "

Mr McGuiness, on behalf of the Council, submits that:(1) by inviting and accepting bookings in the controlled district of Bromsgrove and arranging for other operators as his subcontractors to fulfil those bookings for his customers, Mr Powers was operating vehicles as private hire vehicles within the meaning of s 46(1)(e) of the Act; (2) upon a true construction of s 46(1)(e) and 80(2) as explained in Dittah v Birmingham City Council [1993] RTR 356, private hire operators licensed under s 55 are required to make use only of vehicles and drivers licensed by the Council of the district by which the operators are licensed; and (3) since Mr Powers made use of vehicles and drivers not licensed by the Council of the district by which he was licensed as an operator, namely the Council, he was in breach of s 46(1)(e) and the Council was entitled to refuse to renew his licence under s 62(1)(a). On behalf of Mr Powers Ms Parry disputes Mr McGuiness's first submission but not his second. It follows that if Mr McGuiness' first submission is well-founded so must be his third and the appeal must succeed.

Mr McGuiness' argument in relation to his first submission is very simple. He says that the definition of the word "operate" focuses on the arrangements pursuant to which a private hire vehicle is provided and not the provision of the vehicle itself. It is common ground that the word "operate" is not to be equated with, or taken as including, the providing of the vehicle, but refers to the antecedent arrangements. That is clearly right.

This Court has, on a number of occasions, emphasised the narrowness of the definition of the word "operate" and stated that it is not to be given any wider meaning such as "providing", "using" or "permitting to be used": see, for example, Britain v ABC Cabs (Camberley) Limited [1981] RTR 395, 404K, Windsor and Maidenhead Royal Borough Council v Khan [1994] RTR 87, 91B and Adur District Council v Fry [1997] RTR 257. It is also common ground that there is no prohibition on an operator subcontracting the providing of a vehicle to another operator. Such an arrangement is explicitly acknowledged and sanctioned by s 56(1) and (2).

Ms Parry submits that, because the vehicles and drivers were not provided by Mr Powers but by a subcontracting operator, he did not operate the vehicles for the purposes of s 46(1)(e). The justices appear to have accepted this submission but with two provisos: namely (1) that Mr Powers was not the owner of the vehicles used to fulfil the bookings; and (2) that the vehicles and drivers used to fulfil the bookings were licensed by another controlled district.

As I understand her submissions, Ms Parry contends that I should accept her submissions without necessarily endorsing the provisos. I can deal with the provisos at once. I agree with Mr McGuiness that neither proviso can be justified. As regards the first, the Act requires three distinct licences, namely licences for operators, vehicles and drivers. It does not stipulate that it is only vehicles owned by the operator which must be licensed by the same district council as grants the operator's licence. Whether or not the operator owns the vehicle is irrelevant for the purposes of s 46(1)(e).

The first proviso therefore introduces an irrelevant consideration which finds no echo or justification in the Act. As for the second proviso, as Mr McGuiness points out, it was expressly held in Dittah that compliance with s 46(1)(e) required that all three types of licence: operator, vehicle and driver, had to be issued by the same authority.

I return from the diversion of the provisos and consider Ms Parry's main submission. The fundamental difficulty in the path of her argument is that it involves construing s 46(1)(e) as if it read:

no person licensed under the said section 55 shall in a controlled district operate and provide any vehicle ... "

The draftsman was alive to the concept of providing vehicles. Section 56(1) is of importance here since it shows that the draftsman plainly understood that an operator might or might not himself provide the vehicle. In view of this, it seems to me that Parliament deliberately decided to make the liability of an operator under s 46(1)(e) not dependent on whether he himself provided the vehicle. That is consistent with the narrow and, some might say, rather strained definition of operator in s 80(1).

When I put to Ms Parry in argument that her interpretation involved adding the words "and provide", to s 46(1)(e) she replied that some additional words were necessary even on Mr McGuiness' interpretation. There was placed before me a document, apparently prepared by Mr McGuiness, in which he re-worded s 46(1)(e) in the light of the relevant definitions contained in s 80(1) and did so in the following terms:

[the Respondent] [in Bromsgrove District Council] [in the course of business made provision for the invitation or acceptance of bookings for a private hire vehicle] [in respect of] [a motor vehicle provided for hire with the services of a driver for the purpose of carrying passengers.]."

The only words that he has inserted, which are additional to those found in the relevant definitions, are: "in respect of". These words improve the text. The statutory language is somewhat infelicitous, because of the definition of "operate" and the juxtaposition of operate and any vehicle. The additional words do not, however, change the meaning of the paragraph at all. On the other hand, the addition of the words "and provide" undoubtedly effect a significant and, in my view, unwarranted change to the meaning of s 46(1)(e). I am satisfied that Mr McGuiness' first submission is correct. The language of s 46(1)(e) is clear and cannot bear the meaning for Ms Parry contends. Mr McGuiness' submission is also consistent with the underlining regulatory purpose of the Act which, as Russell LJ said in St Albans District Council v Taylor [1991] RTR 400, 403A to B, is:

... to provide protection to members of the public who wish to be conveyed as passengers in a motor car provided by a private hire organisation with a driver."

Ms Parry submits that it is fairer and makes more sense that the operator who actually provides the vehicle and driver should be responsible for ensuring that the vehicle and driver used are licensed. In my judgment, however, Parliament has clearly imposed such an obligation on the operator regardless of whether he himself provides the vehicle and driver. In the result this appeal must be allowed. Accordingly I answer the three questions posed by the Justices "no", "no", and "yes".

MR MCGUINESS: In those circumstances the Appellate authority asks for its costs here and in the Court below. We were, in fact, ordered to pay the Respondent's costs in the Court below, although I think payment has been suspended pending this appeal. In the light of your Lordship's ruling, I would ask for costs here and below.

MISS PARRY: Regarding the costs aspect of this matter, my Lord, as it has been said in previous cases and authorities on this Act, this is a very difficult Act and a very technical Act. It is submitted, my Lord, that your judgment itself points out the difficulties with regard to the reading of the whole of the Act as it stands at present.

My Lord, with regard to the matter of costs - I hesitate and will not go into the arguments made for the Respondent previously - I would ask that each party bears their own costs. Mr Powers is not a man of great means at all in these matters. He, in fact, brought the appeal in the Magistrates' Court for one reason only: he did not wish to be committing any offences. He believed that he needed his operator's licence. He could not afford to lose that. He was reading the Act as it has been submitted. It is submitted that there have been no authorities specifically dealing with the position the Respondent found himself in.

To an extent this Respondent has been leading a case that I am sure many others, not only local authorities but other operators in his position, feel will clarify the law. It is submitted, especially with regard to his means, that it would be penalising a gentlemen who wished to operate correctly and within the law if he is to pay the costs in particular of this hearing.

I would therefore submit that each party bear their own costs of today's hearing and either the Magistrates' Court Costs Order stand or that down below. Unless I can assist further on that?

DISPOSITION:
Application allowed,

SOLICITORS:
Legal Services, Bromsgrove District Council; Kearns & Co, Swansea