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Operating P/H in a controlled district, vehicles not licensed.
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MURTAGH AND CARTER (T/A RUBERY REDNAL CARS) v BROMSGROVE DISTRICT COUNCIL

Queen's Bench Division

[2001] LLR 514

HEARING-DATES: 15 October 1999

Taxis - Operating private hire vehicles within controlled district when driver and/or vehicle not licensed - Operator licensed for area but driver and vehicle licensed only in neighbouring area - Meaning of 'operate' - Local Government (Miscellaneous Provisions) Act 1976

NOTE:
Rubery Rednal Cars had arranged for a number of dedicated telephone lines to be available in supermarkets in the controlled district of Birmingham City Council. The lines connected only with their office in Rubery within the area of Bromsgrove District Council. They were prosecuted for offences involving three journeys booked via the supermarket telephones. The first journey was from Bromsgrove into Birmingham. The second and third journeys took place wholly within Birmingham. The drivers and their vehicles were licensed within Birmingham but not Bromsgrove. Rubery Rednal Cars held operators' licences in both districts.

Before the magistrates' court they were convicted of three offences contrary to s 46 of the Local Government (Miscellaneous Provisions) Act 1976 (operating a vehicle when driver not licensed) and two offences contrary to s 48 (knowingly operating a vehicle which was not licensed). They appealed by case stated submitting that provided there was registration in both areas from which Rubery Rednal Cars operated, it mattered not that the vehicles and their drivers were not dually licensed.

Held - s 80(1) of the 1976 Act provides that operate means 'in the course of business to make provisions for the invitation or acceptance of bookings for a private hire vehicle'. In each case whilst the invitation may have been made in Birmingham the booking was accepted in Bromsgrove. Although the appellants held operators' licences issued both by Birmingham as well as by Bromsgrove in relation to the Bromsgrove operation, they were not entitled to operate private hire vehicles which were not licensed by and driven by drivers licensed by Bromsgrove District Council.

NOTES:
Statutory provision considered

Local Government (Miscellaneous Provisions) Act 1976, Part II, ss 45, 46(1), (a), (b), (c), (d), (e), 48, 51, 55, 75, 80(2)

CASES-REF-TO:
Dittah v Birmingham City Council; Choudry v Birmingham City Council 157 JP 1110, QBD

East Staffordshire Borough Council v Rendell (unreported), 3 November 1995, QBD

COUNSEL:
Veronica Hammerton for the appellants; John McGuiness for the respondent

PANEL: Kennedy LJ, Jowitt J

JUDGMENTBY-1: JOWITT J

JUDGMENT-1:
JOWITT J: This an appeal by way of case stated from the decision of the Redditch Magistrates on 8 January 1999 to convict the appellants of five offences relating to the use of private hire vehicles.

The appellants are in partnership trading as Rubery Rednal Cars with their office in Rubery, within the area of Bromsgrove District Council. They faced three charges contrary to s 46 of the Local Government (Miscellaneous Provisions) Act 1976 of operating a vehicle as a private hire vehicle within a controlled district when the driver did not hold a current licence issued under s 51 of the Act. Two of these offences were said to have been committed on 17 July 1998, and the third on the following day.

The appellants also faced a charge in respect of each of these dates of knowingly operating the same vehicle as a private hire vehicle within a controlled district without there being in force a current licence issued under s 48 of the Act. These alleged offences were also contrary to s 46.

The facts were not in dispute and can be stated very shortly. The appellants have a number of dedicated telephone lines from supermarkets in the controlled district of Birmingham City Council which connect the caller directly to the appellants' office in Rubery and apparently nowhere else. The case does not say so in terms, but it seems to be an inevitable implication that there must have been something at the supermarkets drawing shoppers' attention to the fact that here were telephones which would connect them with a taxi firm. Without this the telephones could not have served their purpose.

The first three charges concern fares who were collected and delivered to their destinations as a result of bookings made by using these dedicated telephone lines. The first of them involved picking up a fare in the Bromsgrove controlled district and taking him to a destination in the Birmingham controlled district. The second and third fares were picked up and set down in Birmingham with the whole journey on each occasion being completed within the controlled district of Birmingham.

On each occasion the driver and the car used were licensed by Birmingham City Council.

The relevant legislation is to be found in Part II of the 1976 Act. The two local authorities, Birmingham City Council and Bromsgrove District Council, by resolutions passed pursuant to s 45, applied the legislation to their own areas which became, following the terminology of the legislation, controlled districts for the purpose of that legislation.

Section 46(1) imposes licensing requirements in respect of the operators, owners and drivers of vehicles used for private hire, and in respect of the vehicles themselves in relation to the use of such vehicles in a controlled district. Paragraph (a) provides that the owner of a vehicle may not use it or permit it to be used as a private hire vehicle in a controlled district unless he holds a current licence for that vehicle issued pursuant to s 48. Paragraph (b) provides that the driver must have a current licence issued pursuant to s 51. Paragraph (c) provides that the owner of the vehicle may not employ someone to drive the vehicle for the purpose of hiring unless he, the driver, holds such a licence. Paragraph (d) provides that the operator of the vehicle must have a licence issued to him pursuant to s 55. Paragraph (e) provides that he may not operate a vehicle as a private hire vehicle in a controlled district unless there is in force a licence both for the vehicle and the driver.

It is the councils for the controlled districts which issue the various licences for their districts. Section 80(2) provides that references in the statutory provisions are to a licence issued by the council for the controlled district. It is clear the licences apply only within the controlled district of the issuing council. Provision is made, though, by s 75 to permit certain journeys into another controlled district in respect of which licences have not been issued. Miss Hammerton for the appellants accepts that she cannot find any assistance in that section in the present case.

Section 80(1) provides that operate means 'in the course of business to make provisions for the invitation or acceptance of bookings for a private hire vehicle'. Thus the definition refers to provision of two kinds, and it follows that while they may both be made in the same place, they may not be, and the question is one of fact to be approached in common-sense terms: see the judgment of Simon Brown LJ in East Staffordshire Borough Council v Rendell (unreported), 3 November 1995 at 8D-9A, with which Sedley J agreed.

It was contended by the appellants before the magistrates that by reason of the dedicated telephone lines in Birmingham they had made provision for the invitation there of bookings for a private hire vehicle, and so were operating within the Birmingham controlled district, and could respond to bookings by providing a private hire vehicle licensed by and driven by a driver licensed by the Birmingham City Council.

The respondent's contention was that there was no provision in Birmingham for the invitation of bookings and that bookings were accepted in the Bromsgrove controlled district so that the vehicle and its driver had both to be licensed by Bromsgrove. Moreover, it was contended, even if the appellants operated also within the Birmingham controlled district by virtue of the dedicated telephone lines, that did not affect the statutory requirement arising from the fact of operating in Bromsgrove.

The magistrates accepted the respondent's contentions. They concluded that the appellants were operating in the Bromsgrove controlled district and were not operating in the Birmingham controlled district. They concluded that the use of the vehicle on the three occasions did require a vehicle and driver licensed by Bromsgrove, and that accordingly all five offences were made out.

Today before us Miss Hammerton has submitted that, provided there is registration in both areas from which the appellants operate, it matters not that the vehicles and their drivers are not also dually licensed (ie licensed by each area). She points to the practical difficulties if dual registration has to be provided: sets of records have to be kept which are available to both licensing authorities; both licensing authorities are entitled to inspect the vehicles and to make conditions as to what the vehicles should be (and there may be inconsistencies between two sets of conditions); and there is the fact that it is costly if vehicles and drivers have all to be licensed by two authorities. However, while we see the difficulties and sympathise with them, the question for us is whether, since undoubtedly the appellants were operating in Bromsgrove (because that is where they accepted bookings), it is to be said that not only had the operators to have their licences, but the vehicles and their drivers also had to have their licences issued by Bromsgrove.

In Dittah v Birmingham City Council; Choudry v Birmingham City Council 157 JP 1110, Kennedy LJ, with whose judgment Clarke J agreed, read a passage from a letter of the Department of Transport to the district secretary of the Bromsgrove District Council:

'In our view applying s 80(2) to ss 46(1)(d) and (e) has the effect that an operator requires a licence from the area in which he intends to operate and may operate only in that area vehicles and drivers licensed by the same district. This has the practical effect that an operator licensed in area A may only use vehicles and drivers licensed in area A but these vehicles and drivers will by virtue of s 75(2) exemption be able to go anywhere in the course of the hiring.'

Kennedy LJ said about that passage:

'That in my judgment is an accurate statement of law, whatever may have been said elsewhere in the past.'

It follows in my judgment that, although the appellants held operators' licences issued both by Birmingham as well as by Bromsgrove, they were not entitled to operate private hire vehicles which were not licensed by and driven by drivers licensed by Bromsgrove. That is so whether or not they operated also in the Birmingham controlled district by virtue of the dedicated telephone lines in the supermarkets, because on any view they operated from Bromsgrove. That is the point which Mr McGuinness on behalf of the respondent makes, and it seems to me to be a point well made. It follows plainly from the legislation. The point is made clear in Dittah v Birmingham City Council; Choudry v Birmingham City Council 157 JP 1110. If it were the case that the appellants operated also from Birmingham, then it would be necessary not only that they hold operators' licences from Birmingham, but also that the same vehicles licensed by and driven by drivers licensed by Bromsgrove should also be licensed by Birmingham and driven by drivers licensed by both Bromsgrove and Birmingham. The parties differ as to whether there was, by virtue of the dedicated telephone lines, provision for the invitation of bookings for a private hire vehicle in Birmingham. However, I take the view that it matters not whether there was an operating base in Birmingham as well as in Bromsgrove. Since there was an operating base in Bromsgrove then the vehicles and their drivers had to be licensed by Bromsgrove. In those circumstances I do not find it necessary or desirable that I should express any conclusions about the findings which the magistrates made that there was no operation in Birmingham.

Since I conclude that licensing in Bromsgrove of both vehicles and drivers was required, it follows that these offences were made out. I for my part would dismiss this appeal.

JUDGMENTBY-2: KENNEDY LJ

JUDGMENT-2:
KENNEDY LJ: I agree. The facts of this case make it clear that in fairness to private hire operators the provisions of this statute should be reconsidered by the legislature as a matter of some urgency.

In 1999 it is absurd that a licensed operator who operates in the area of one district council in a large conurbation commits a criminal offence if he instals a small sub-office, or perhaps even a dedicated telephone line, in an area controlled by an adjoining district council because he thereby makes provision for the invitation of bookings in the second area. To keep within the law he must then obtain a whole series of fresh licences - an operator's licence, drivers' licences and vehicle licences - for the second area.

This cannot be what Parliament originally envisaged. As the cost of licences varies, we understand, from one district to another, it is not easy to see precisely how the problems should be resolved, but clearly if operators, their drivers and their cars are properly licensed in respect of one area which is responsible for overseeing their activities, they should not have to be re-licensed elsewhere. The problem is to some extent the result of improved technology since the statute was passed, but the law needs to reflect the current state of technology and not be 23 years behind it.

DISPOSITION:
Appeal dismissed. Appellants to pay respondent's costs in sum to be agreed.

SOLICITORS:
Rowe & Cohen for the appellants; Local authority solicitor
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