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Solihull Metropolitan Borough Council v Silverline Cars

QUEEN'S BENCH DIVISION

153 JP 209, [1989] RTR 142

HEARING-DATES: 11 July 1988

11 July 1988

Private hire care licensing -- powers of the court when dealing with appeals against conditions controlling the display of identification discs or plates -- Part II, Local Government (Miscellaneous Provisions) Act 1976.

HEADNOTE:
Where the local authority have issued a private hire car licence under Part II of the Local Government (Miscellaneous Provisions) Act 1976, subject to a condition prescribing the manner in which an identification disc or plate shall be displayed, and there is an appeal to the magistrates' court against the condition:

(a) the size and design of the disc or plate cannot be the subject of the appeal;

(b) the only exemptions from displaying a disc or plate are those contained in s 75 of the 1976 Act, and therefore whilst the court can vary a condition, the court cannot (i) allow such an exemption, or (ii) delete a condition without replacing it with another condition;

(c) the nature of the business conducted by the proprietor of the hire car is irrelevant to the appeal.

INTRODUCTION:
Appeal by way of case stated against a decision of the Crown Court sitting at Warwick (Mr Recorder Alexander, QC and justices).

COUNSEL:
R Gray, QC and J Cahill, for the appellants; J Gorman, QC and M Burrows, for the respondents.

PANEL: Mann LJ, Auld J

JUDGMENTBY-1: MANN LJ

JUDGMENT-1:
MANN LJ: There is before the court an appeal by way of case stated. The case has been stated by the Crown Court in Warwick, comprised of Mr Recorder Alexander, QC and justices, in respect of their adjudication on November 13, 1987 when they heard an appeal from justices for the county of West Midlands acting in and for the Petty Sessional Division of Solihull. The present appellant is the Solihull Metropolitan Borough Council in its capacity as an authority which has implemented within its district the adoptive provisions of Part II of the Local Government (Miscellaneous Provisions) Act 1976, relating to private hire vehicles. The respondent is Silverline Cars, which is an undertaking operating private hire vehicles.

The original appeal to the Solihull justices was lodged on April 22, 1987 and was in respect of conditions applied to private hire vehicle licences granted by the present appellant to the present respondent in respect of two of the respondent's vehicles. It is unnecessary to differentiate between those vehicles.

In order that the matter may be comprehensible it is necessary to refer to certain provision of Part II of the Act of 1976. That Part provides for a regime of licensing in regard to both hackney carriages and private hire vehicles. The licensing of private hire vehicles is dealt with in particular in s 48. Subsection (1) provides:

"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 vehicles of a licence to use the vehicle as a private vehicle, grant in respect thereof a vehicle licence . . ."

I need read no further.

Subsection(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."

Subsection (6) is crucial:

"(a) Subject to the provisions of this Part of this Act, no person shall use or permit to be used in a controlled district as a private hire vehicle a vehicle in respect of which a licence has been granted under this section unless the plate or disc issued in accordance with subs (5) of this section is exhibited on the vehicle in such manner as the district council shall prescribe by condition attached to the grant of the licence."

Subsection (5) need not be read. It imposes an obligation upon the local authority to issue a plate or disc identifying a vehicle as a private hire vehicle, once they have granted a licence in respect of it.

Subsection (7) provides that:

"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."

Section 75 exempts certain vehicles. I do not pause upon the terms of the exemptions. Suffice it to say that the section has been amended in an immaterial aspect by sch 7 of the Transport Act 1985.

Subsection (3) gives to the local authority what is in effect a dispensing power in these terms:

"Where a licence under s 48 of this Act is in force for a vehicle, the council which issued the licence may, by a notice in writing given to the proprietor of the vehicle, provided that para (a) of subs (6) of that section shall not apply to the vehicle on any occasion specified in the notice or shall not so apply while the notice is carried in the vehicle; and on any occasion on which by virtue of this subsection that paragraph does not apply to a vehicle s 54(2)(a) of this Act shall not apply to the driver of the vehicle."

Section 54 deals with the wearing of driver's badges. The effect of the dispensation is that the vehicle and its driver are effectively anonymous so far as the regime of private hire is concerned.

It is to be observed that the dispensing power is a power given to the local authority alone. It is not a power given either to the magistrates who hear an appeal or to the Crown Court who hear an appeal from the magistrates.

The powers of the magistrates and of the Crown Court are, by reason of the applied provisions of s 302 of the Public Health Act 1936, limited to varying or reversing a decision.

The licences which contain the impugned conditions are dated April 23, 1987 and May 18, 1987. Condition number 3 reads as follows:

"Identification Disc. The disc identifying the vehicle as a private hire vehicle and required to be exhibited to the vehicle pursuant to s 48(6) of the Local Government (Miscellaneous Provisions) Act 1976 shall be securely fixed to the rear window of the vehicle in a conspicuous position."

In times past, the Solihull Metropolitan Borough Council's disc was a sticker, having overall dimensions of two and three quarter inches by three and three quarter inches; a modest mark. However, in 1987, for reason which I need not entertain, a larger disc came into use. Its overall dimensions were some four and a half inches by twelve and three quarter inches. The present respondents operate a business of quality in which discretion is of the utmost importance. Whilst the respondent was content with the smaller and earlier disc, they do not take to the larger disc which they regard as being not consonant with the nature of their undertaking. Hence the appeal to justices Hence the appeal to the Crown Court.

I have some sympathy with the respondent in their dislike of exhibiting the larger disc. I can well understand why the regard such an exhibition as not consonant with their business. However, sympathy is not enough. As I read the statute, the design and form of the plate or disc is wholly a matter for the local authority. Their decision as to a particular form of plate or disc is no doubt subject to judicial review, in the event that the plate or disc is achieved as a result of Wednesbury perversity. The design is not, however, a matter for the court. The court is concerned and concerned only, with the condition as to exhibition. The manner of exhibition can be the subject of appeal, the form of the plate or disc is not the subject of appeal.

As it seems to me, the Crown Court in the present case exercised a dispensing power. They decided that no exhibition of the plate or disc, to which the court took a dislike, should be made. I do not think that is right. The only dispensing power is that contained in s 75(3) and that is a matter for the local authority. All that the court can do is to vary the condition in regard to the manner of exhibition. It cannot dispense with exhibition altogether. No doubt, there is a relationship between the form of the plate or disc and the manner of exhibition. That relationship the court can legitimately take into account. It cannot, however, dispense with exhibition entirely.

Accordingly, I, for my part, would allow this appeal. Turning to the questions posed in the case, I recite them and answer them as follows.

"(a) "Whether the size and design of an identification disc can be considered in an appeal against a condition prescribing the manner in which it is to be displayed", the answer is no.

"(b) Whether on the true construction of s 48(6) of the Act there is a requirement for a plate or disc to be exhibited on all licensed private hire vehicles subject to the exemptions under s 75 of the Act", the answer is, yes.

"(c) Whether the nature of the business conducted by the respondent is relevant when considering an appeal against a condition concerning the manner of display of an identification disc", the answer is, no.

"(d) Whether it is within the court's powers to delete a condition as to display without replacing it with another condition when determining an appeal against condition imposed under s 48(6) of the Act." The answer is, no. The court can of course vary.

For those reasons I would allow this appeal.

JUDGMENTBY-2: AULD J

JUDGMENT-2:
AULD J: I agree and have nothing to add.

DISPOSITION:
Appeal allowed with costs.

SOLICITORS:
The Solicitor, Solihull Metropolitan Borough Council, for the appellants; Taylor & Co, Solihull, for the respondents.

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