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Bournemouth Borough Council v Davis

Queen's Bench Division (Crown Office List)

HEARING-DATES: 8 May 1987

COUNSEL:
P Clarkson for the Appellant; D Ellis for the Respondents

PANEL: McCowan J

JUDGMENTBY-1: McCowan J

JUDGMENT-1:

McCowan J.

Certain hire car proprietors appealed by way of complaint against the refusal on 18th April 1985 by the Bournemouth Borough Council of their applications for relief from a condition imposed pursuant to section 48(2) of the Local Government (Miscellaneous Provisions) Act 1976 restricting the use of roof signs on their private hire vehicles. On 13th September and 11th October 1985 magistratates for the Petty Sessional Division of Bournemouth heard and allowed their appeal. The Borough Council now appeal against that decision of the magistrates by way of case stated.

The background to the matter can be shortly stated. The hire car proprietors applied to the Borough Council to be permitted to have illuminated signs on top of their hire vehicles. The Borough Council said no because in Bournemouth taxis and hire cars are virtually indistinguishable in appearance. The taxis carry a sign saying "Taxi" in the centre of their roofs. The hire car proprietors wanted a sign which would give their name and address and would also be on the roof but somewhat to the side rather than in the centre of it. The Borough Council took the view, despite the differences in the form and position of the signs, that confusion in the minds of the public was still likely because of the similarity of the vehicles.

It is necessary for me to start by looking at the Local Government (Miscellaneous Provisions) Act 1976 and in particular, section 48 which deals with the licensing of private hire vehicles. Subsection (1) says: "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: Provided that a district council shall not grant such a licence unless they are satisfied (a) that the vehicle is . . . . (ii) not of such design and appearance as to lead any person to believe that the vehicle is a hackney carriage . . .

"(2) A district council may attach to the grant of a licence under this section such conditions as they may consider reasonably necessary including, without prejudice to the generality of the foregoing provisions of this subsection, conditions requiring or prohibiting the display of signs on or from the vehicle to which the licence relates."

The Borough Council were not satisfied that the proprietors' vehicles would not be of such design and appearance as to lead any person to believe that their vehicles were hackney carriages. In consequence, they prohibited the display of signs on those vehicles.

Subsection (7) provides: "Any person aggrieved by the refusal of a district council to grant a vehicle licence under this section, or by any conditions specified in such a licence, may appeal to a magistrates' court.

By the local Government (Miscellaneous Provisions) Act 1976, section 77 it is provided that the appeal is by way of complaint. In the result, the justices have to substitute themselves for the council. Within the terms of section 48(1) -- which I have read -- they shall not grant a licence unless they are satisfied in the terms of (a)(ii).

The findings relied on by the Council in this appeal are to be found, first of all, at (g) on page 3 of the case. Paragraph (g) reads: "That although the proposed private hire vehicle roof sign is different in form and size from the taxi's sign, there might well be confusion since Bournemouth is a holiday resort with a large population of visitors and foreign students and further that the types of cars used by both sides of the trade are virtually the same."

One sees something similar being said by the justices at the bottom of page 9 of the case: " . . . we accepted that there might well be confusion to the public as a result of the roof signs requested being allowed by us on private hire vehicles". At letter (h) on page 3 they said: "That the degree of confusion was difficult to predict and that a balance had to be drawn between confusion caused and the advantages to the public, specified in paragraphs (a), (b), (c) and (d)."

However, it was not their business under the Local Government (Miscellaneous Provisions) Act 1976 to conduct a balancing exercise. It seems to me on those findings of fact that their only proper course was to dismiss the appeal brought by the hire car proprietors. That they did not do so appears to have been caused by their misunderstanding of the significance of two statutes and two decided cases.

As to the statutes, the first was the Transport Act 1980 section 64(1) which reads: "There shall not, in any part of England and Wales outside the metropolitan police district of the City of London be displayed on or above the roof of any vehicle which is used for carrying passengers for hire or reward but which is not a taxi (a) any sign which consists of or includes the word 'taxi' or 'cab' whether in the singular or plural, or 'hire' or any word of similar meaning or appearance to any of those words, whether alone or as part of another word; or (b) any sign, notice, mark, illumination or other feature which may suggest that the vehicle is a taxi." This is what Mr Clarkson, for the Borough Council describes as "an offence Act".

The other statute was the Bournemouth Borough Council Act 1985. Section 32(1) reads: "Except as provided in subsection (2) below, there shall not be displayed in the borough on or from any motor vehicle constructed or adapted to seat more than two and less than 9 passengers, not being a hackney carriage or public service vehicle (a) any sign, notice, mark, illumination or other feature which, having regard to the time and place at which it is displayed and to any other circumstances, may suggest to a person seeking to hire a private hire vehicle or a hackney carriage that the vehicle is used for purpose of carrying passangers for hire or reward; (b) without prejudice to the generality of paragraph (a) above in the case of a private hire vehicle any sign or notice which consists of or includes . . . (ii) any telephone number or address, or any number or words which appear to be, or resemble, a telephone number or address."

"(2) Subsection (1) above shall not apply to (a) a sign displayed on or from a private hire vehicle prescribred or expressly permitted by condition attached to the grant of a licence for that vehicle under section 48 of the Local Government (Miscellaneous Provisions) Act 1976".

This was another "offence Act" within Mr Clarkson's definition. The effect, as he put it, was that one is more likely to offend in Bournemouth than anywhere else because the law is more stringent.

As to the two authorities to which I am referred, I must return to the passage at the bottom of page 9 of the case and read the whole of it. It reads: ". . . although we accepted that there might well be confusion to the public as a result of the roof signs requested being allowed by us on private hire vehicles, the decisions of Breame v Anderson and Another [1971] RTR 31 and Yakhya v Tee were binding upon us. Accordingly we allowed the appeal."

Breame v Anderson is reported in [1971] RTR 31. The question there was whether the telephone number exhibited on a car roof suggested that the vehicle was immediately available for hire. That was an entirely different question from the one with which the justice were concerned.

So far as Yakhya v Tee was concerned, that was a decision of the Divisional Court of 22nd April 1983 with which I have been provided with a transcript. The judgment of the court was given by Mann J. At page 2 letter B he said this: "The case arises out of an information preferred by the respondent against the appellant, alleging that the appellant, on 3rd October 1981 at Reading in the County of Berkshire, did knowingly drive a vehicle which was used for carrying passengers for hire or reward but which was not a taxi, displayed on the roof of which was a sign which suggested that the vehicle was a taxi, contrary to section 64(1)(b) and (2) of the Transport Act, 1980."

At page 5A he said: "In our judgment, a court has to look at the vehicle of itself and in particular context but with the sign on it and then ask, as a matter of commonsense: Does the sign suggest that the vehicle is a taxi?

"Applying that test, we ask did the sign suggest that the vehicle was a taxi? The sign suggests a number of things. Amongst others it suggests that the vehicle was available for hire on a telephone call or it suggests a means of identifying the vehicle that a caller had ordered. Accordingly, and applying the test in Breame v Anderson [1971] RTR 31, we are of the opinion that the conclusion reached by the justices was such that no properly instructed and reasonable bench of magistrates could have reached. In fairness to the justices we record that Breame v Anderson was not drawn to their attention.

"We now respond to the questions which the justices ask. The first is: 'Whether the justices were correct in deciding that the sign displayed on the roof contravened the subsection in that it may have suggested that the vehicle was a taxi'.

The answer is No. The second is: 'Whether the justices were correct in inferring that any sign displayed on the roof of a private hire vehicle, and in particular a sign containing a telephone number, would be in contravention of the subsection'. The answer is No."

These were criminal cases. They did not, in mu judgment, bind the justices in the exercise upon which they were, or should have been, engaged.

In conclusion the justices pose certain questions for the opinion of the High Court as follows. The first question reads: "Were we correct in our opinion that the licensing functions of sections 48(1) and 48(2) of the Local Government (Miscellaneous Provisions) Act 1976 are qualified by section 64(1)(b) of the Transport Act 1980 as interpreted by the case of Yakhya v Tee"? The answer to that question, in mu judgment, is No.

Secondly they ask: "Were we correct in out opinion that section 32(1) of the Bournemouth Corporation Act 1985 which forbids the display of signs on private hire vehicles is qualified by subsection 2(a) of that section which exempts signs displayed and expressly permitted by a condition attached to the grant of a licence for the vehicle under section 48 of the Local Government (Miscellaneous Provisions) Act 1976?" The answer to that question is, Yes.

The third question is posed as a single question but it should be subdivided into two. The first part will read: "Were we correct in our opinion that the provisions of the Bournemouth Corporation Act 1985 and the case of R v Bournemouth Borough Council ex parte Thompson and Roberts 83 LGR 662 cannot override the provisions of the 1976 and 1980 Acts?" The answer to that question is, Yes.

Finally, they ask: "Although we accepted that there might well be confusion to the public as a result of the roof signs requested being allowed by us on private hire vehicles the decisions of Breame v Anderson and Another and Yakhya v Tee were binding upon us?" Were they correct in that opinion? The answer to that question is, No.

That last question is the crucial question. In my judgment they answered it incorrectly. Their decision was wrong. I take the view that it is obvious that if they had not answered it incorrectly, in the light of their finding of fact as to confusion, they would have dismissed the appeal.

Accordingly, I see no useful purpose in remitting the matter to the justices. I shall hold that the appeal from the decision of the Borough Council to the justices must be held, in law, to have failed.DECEMBER 25, 1982

DISPOSITION:
Appeal dismissed with costs for the Respondents

SOLICITORS:
Sharpe Pritchard & Co,