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Adur District Council v Fry

Queen's Bench Divisional Court (Crown Office List)

HEARING-DATES: 7 April 1995

7 April 1995

COUNSEL:
P Harrison for the Appellant; V Hamerton for the Respondent

PANEL: Leggatt LJ, Kay J

JUDGMENTBY-1: KAY J

JUDGMENT-1:
KAY J: This is a Prosecutor's appeal by way of Case Stated from the dismissal, by the Stipendiary Magistrate for the County of West Sussex on 27 September 1994, of two informations alleging contraventions of s 46(1)(e) of the Local Government (Miscellaneous Provisions) Act 1976, ("the Act"), such contraventions being made offences by s 46(2).

The Respondent is the operator of a private hire vehicle business known as Car Cabs from an address within the Hove Borough Council area. He is licensed under s 55 of the Act by three authorities: Hove Borough Council, Brighton Borough Council and the Appellant authority, Adur District Council.

On 18 November 1993 Mrs Plowright, who resides within the Appellant authority's area, telephoned Car Cabs and requested a car to take her to an address. A vehicle was dispatched and it took her on a journey which was entirely within the Appellant authority's area. The driver and the cab were licensed by the Hove Borough Council but not by the Appellant authority.

It was alleged against the Respondent that he had thereby breached the provisions of both s 46(1)(e)(i) and (ii) of the Act. The relevant parts of s 46(1)(e) read:

"Except as authorised by this Part 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 driver does not have a current licence under the said section 51."

By s 80(2), the Act provides:

"In this Part of this Act references to a licence, in connection with a controlled district, are references to a licence issued by the council whose area consists of or includes that district, and 'licensed' shall be construed accordingly."

In the light of decisions as to the effect of these provisions (see eg. Dittah v Birmingham City Council [1993] RTR 356, 157 JP 1110) the Respondent was operating in the Appellant authority's area within the meaning of s 46(1)(e) if, in fact, the act that he was responsible for can be said to be "operating" within the meaning of s 46(1)(e).

The issue raised in this case is, thus, the meaning of "operating" in this subsection. The Appellant contends that it should be given its ordinary meaning and, were that right, there can be no doubt that the Respondent would be guilty of each of the two charges. However, the Respondent submits, and the Magistrates found, that the meaning of "operate" is given a restricted meaning by s 80(1) of the Act, which provides:

"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."

Mr Harrison, on behalf of the Appellant authority, contends that the subject or context does require a different meaning to be attributed to s 46(1)(e) of the Act. It is a submission that cannot be said to lack boldness, because it flies in the face of authority.

In St Albans District Council v Taylor [1991] RTR 400, 156 JP 120 this court clearly held that "operate" in the particular section bore the meaning given by s 80(1). (See Russell LJ at page 403J and Hodgson J at page 405C). In Britain v ABC Cabs (Camberly) Ltd [1981] RTR 395 the court considered an offence in relation to s 46(1)(d) of the Act, which reads:

"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."

There is no possible reason for attributing a different meaning to "operate" in the two sub-paragraphs, (d) and (e) of the subsection. In Britain's case the court considered that the definition in s 80(1) applied to s 46(1)(d) of the Act.

In Windsor and Maidenhead Royal Borough Council v Khan [1994] RTR 87 this court again reached the same conclusion as to s 46(1)(d), although it appears that no reference was made to Britain's case during the course of that hearing. Thus, the Appellant is faced with persuading the court that each of these decisions was wrong. It is submitted that the narrow interpretation should not be applied, since to do otherwise would deprive s 46(1)(e) of any sensible meaning, and since it would enable a driver, vehicle and operator, over whom the Adur District Council had no jurisdiction, to provide a minicab service to the public within their controlled district. It is said, therefore, that all of this would be contrary to the policy of this Part of the Act.

I reject the suggestion that using the definition provided by s 80(1) of the Act deprives the section of any meaning. It may be that if "operate" was given its ordinary everyday meaning it would be the more readily understood, but that is a long way from saying that it is not capable of being understood with the more limited definition provided in the Act.

The submission that applying the definition is contrary to the policy of this Part of the Act is also, in my judgment, plainly wrong. It is to be noted, first, that in paragraph (a) of s 46(1) a prohibition is imposed upon the proprietor of any vehicle, not being a hackney carriage in respect of which a vehicle licence is in force, from using or permitting the vehicle to be used in a controlled district as a private hire vehicle without a licence under s 48.

Clearly in using "operate" in paragraph (d) and also in paragraph (e) Parliament intended to attach a different meaning to that which had been provided in paragraph (a), when it referred to the "using" or "permitting the use". If it had been intended that the same should apply to both, the same terminology would have been used. To give the wider meaning suggested by the Appellant would, in my judgment, in effect, be to give the same meaning as "used or permit to be used".

Next, reference to s 75(2), which contains saving provisions for certain vehicles, supports the view that Parliament intended the more limited meaning. The matter was put clearly by McCullough J in Windsor Maidenhead Royal Borough Council v Khan when he said at page 90F:

".... without an excepting provision, section 46 would require both a private hire vehicle and its driver to be licensed by every council through whose controlled district it passed on a private hire journey. This would cause practical difficulties for those engaged in the business of private hire and would make no sense from an administrative point of view. The need for multiple vehicle licences and for multiple drivers' licences is obviated by section 75(2), which says:

'Paragraphs (a), (b) and (c) of section 46(1) of this Act shall not apply to the use or driving of a vehicle or to the employment of the driver of a vehicle while the vehicle is used as a private hire vehicle in a controlled district if a licence issued under section 48 of this Act by the council whose area consists of or includes another controlled district is then in force for the vehicle and a driver's licence issued by such a council is then in force for the driver of the vehicle'.

There is no corresponding provision for operators' licences. This is not necessary because of the restrictive meaning given to the word 'operate' in the Act."

He then went on to refer to the provisions of s 80(1) itself, and continued thus:

".... to take Maidenhead as an example, no operator's licence from the council is required merely because a private hire vehicle in the course of the business of its proprietor is driven through Maidenhead. An operator's licence issued by the council is only required by those who in the course of business make provision in Maidenhead for the invitation or acceptance of bookings for private hire vehicles."

In the result I reject the arguments advanced on behalf of the Appellant authority, and conclude that the meaning of "operate" in s 46(1)(e) is that provided in s 80(1).

It is then submitted that even in applying that definition the court has to read the particular provision in a wider way than otherwise might be the case and in such way as to make that which was done in this case an offence. That is an argument which I simply do not accept. One applies the defining section in the way that it is provided and asks the question whether that conduct that is proved against the operator comes within those provisions.

The question posed in the Case Stated is in the following terms:

"Whether it was correct to say that the word 'operate' in Section 46(1)(e) of the Local Government (Miscellaneous Provisions) Act 1976, only includes that part of the whole transaction taking place in the operator's premises."

The question is, perhaps, too widely worded because it is possible to envisage activity taking place outside an operator's premises that might come within the definition provided by s 80(1). There was, however, no such activity in the circumstances of this case. I would, therefore, answer the question "Yes, in the circumstances of this case" and, accordingly, dismiss the appeal.

JUDGMENTBY-2: LEGGATT LJ

JUDGMENT-2:
LEGGATT LJ: I agree, and the appeal will be dismissed.

DISPOSITION:
Appeal dismissed with costs.

SOLICITORS:
Solicitors Department, Adur District Council; Donne Mileham & Haddock, Worthing

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