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CITY OF NEWCASTLE Ex parte JAMES MICHAEL BLAKE, R v. [1997] EWHC Admin 162 (19th February, 1997)
IN THE HIGH COURT OF JUSTICE CO/470/97
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London WC2
Wednesday 19th February 1997
B e f o r e:
MR JUSTICE JOWITT
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REGINA
-v-
CITY OF NEWCASTLE
Ex parte JAMES MICHAEL BLAKE
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(Computer-aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited, 180 Fleet Street, London EC4A 2HD
Telephone No: 0171 831-3183
Fax No: 071 831-8838
Official Shorthand Writers to the Court) - - - - - - -
MR A RUMBELOW QC (instructed by Messrs Sinton and Company, Newcastle upon Tyne) appeared on behalf of the Applicant.
MR S HOCKMAN QC (instructed by Head of Newcastle Law, City of Newcastle-upon-Tyne) appeared on behalf of the Respondent.
MR V PUGH QC for the Intervenor.
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J U D G M E N T
( As Approved by the Court )
Crown Copyright
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Wednesday 19th February 1997
1. MR JUSTICE JOWITT: This is an application for leave to move for judicial review of a decision by the City of Newcastle-upon-Tyne made on 30th December 1996 to continue a two-fold policy not to impose limits on the number of Hackney Carriages it grants, pursuant to its powers under section 37 of the Town and Police Clauses Act 1847 (as amended) but to require all new licences to be in respect of vehicles which are equipped to allow wheelchair access.
2. Essentially there are two challenges to the decision. I deal with the first and refer to the relevant legislation. Section 37 of the Town Police Clauses Act 1847 provides:
"The commissioners [that is now the Council] may from time to time licence to ply for hire within the prescribed distance, ... hackney coaches or carriages of any kind or description adapted to the carriage of persons ....".
3. The amended provisions are to be found in section 16 of the Transport Act 1985:
"The provisions of the Town Police Clauses Act 1847 with respect to hackney carriages, as incorporated in any enactment (wherever passed) shall have effect --
(a) as if in section 37, the words 'such number of' and 'as they think fit' where omitted and;
(b) as if they provided that the grant of a licence may be refused, for the purpose of limiting the number of hackney carriages in respect of which licences are granted, if, but only if, the person authorised to grant licences is satisfied that there is no significant demand for the services of number of hackney carriages (within the area to which the licence) which is unmet."
4. The effect of the amendment is that whereas formerly the local authority could simply decide on a number of Hackney Carriage licences to be issued, it now may simply decide to issue licences to all vehicles in respect of which application is made, provided they are of the appropriate kind, or it can limit the number of licences issued, but only if satisfied there is no significant demand for further licences above the prescribed number. The local authority therefore has a clear discretion to pursue a policy of limiting numbers to match need, or to pursue a policy which grants licences for every vehicle in respect of which a licence is sought. Certainly, in the latter event, the Council is under no duty to inform itself of the state of demand for Hackney Carriage licences unless there is some other element in its policy which makes it appropriate that it should so inform itself.
5. I have to remind myself that the policy of a local authority is one formulated by its elected members who are answerable to their electorate for the policies they formulate. The court sitting in judicial review should be slow to interfere with a policy formulation. Of course, I am not at this stage sitting in judicial review but only deciding whether an arguable case has been made out for the grant of leave. Nonetheless, in deciding whether a case is arguable, it is appropriate to have in mind the court's approach when it comes to examining the formulation of a policy by a local authority.
6. Mr Rumbelow's first challenge is formulated in two ways. First, he says the local authority have not adopted the second policy, that is to issue licences in respect of all suitable vehicles to which they are sought. It must therefore have regard to need.
7. His second way of putting his challenge is that the local authority has adopted two policies in relation to the grant of licences. These are in conflict with one another and therefore give rise to Wednesbury unreasonableness and, at the least, to an arguable case. I do not accept the correctness of Mr Rumbelow's first formulation. In my judgment, the nature of his first challenge is more accurately expressed by his second formulation.
8. The city of Newcastle-upon-Tyne had formerly had a policy by which numbers of hackney carriages, which were licenced, reflected need. That policy changed to the unlimited grant of licences. It adverted to the earlier policy but, once again, in 1994, it was changed to the unrestricted issue of licences.
9. Before the meeting of the Council on 30th December 1996, it received representations both for and against a change in the policy in force at that time. Those representations included what was said by operators of Hackney Carriages who did not want to see any change in policy and those who thought that the policy should revert to the former policy which reflected need.
10. In these circumstances, the city commissioned a survey which examined the extent to which the demand for the services of Hackney Carriages was being met. It is a fair summary of the results of that survey that overall there was not found to be any significant unmet need, though there were occasions, at certain hours and at certain stands, where there were unduly long waiting periods. It seems to me entirely reasonable, if the future policy was to be reconsidered, for the city to commission such a survey. The commissioning of such a survey did not in itself commit the authority to decide one way or the other as to its future policy.
11. Mr Rumbelow submits though, that in the light of the results of that survey, it was Wednesbury unreasonable to continue a policy in which there was no limit placed upon the number of Hackney Carriage licences to be issued. I reject that submission.
12. Such a submission would fetter the free discretion given to a local authority by the legislation to which I have already referred.
13. It is necessary now to turn to the policy as appears from the report for members which was made available to the councillors for their meeting on 30th December 1996. Under the heading "Policy Context"
it is stated:
"5.2 The Council's overall policy objective is to ensure the provision of a hackney carriage service that provides for the needs of all users.
5.3 There needs to be sufficient vehicles to satisfy the demands within the City. The survey evidence indicates the current position.
...
5.5. It is also in the interests of all users that supply does not exceed demand to such an extent that undesirable practices develop which will not operate in the interests of the public."
5.7.
2. There is no limit on the number of licences which will be granted."
14. Mr Rumbelow submits there is an inconsistency between what is said in paragraph 5.5 and in paragraph 5.7.2, in that paragraph 5.5 contemplates a limitation of the number of licences to be granted, whereas the effect of paragraph 5.7.2 is entirely to the contrary. I do not accept this submission. The submission would be well-founded if paragraph 5.5 read simply in this way:
"It is also in the interest of all users that supply does not exceed demand."
15. But those words are qualified by the important words which follow:
" ... to such an extent that undesirable practices develop which will not operate in the interests of the public."
16. It seems to me axiomatic in this day and age that over supply of facilities will not necessarily adversely affect the public interest. Indeed, the element of the competition may be favourable to the public interest.
17. On the other hand, I can see perfectly well how over supply may reach a point at which it gives rise to practices which, in the words of paragraph 5.5, will not operate in the interests of the public. The other side of the coin is that if one could ever match perfectly supply and demand -- and Mr Rumbelow concedes that would be an impossible exercise -- that is something which might very well not work in the public interest because of the absence of any competition. All of these matters would be matters which would be perfectly well within the experience and local knowledge of the councillors who adopted this policy. I do not begin to see how it is arguable that there is an inconsistency between policy objective paragraph 5.5 and the policy which is set out in paragraph 5.7.
18. The fact that there is at the moment an excess of supply over demand does not mean that there are, at the moment, practices which will operate against the interests of the public. That is a position which may, but will not necessarily, arise in the future if there is a continuance of over supply or an increase in over supply. That possibility leads me to offer these words of caution. A local authority which has these twin policy objectives would obviously be wise to monitor the situation to see whether a situation is developing in which the policy objective expressed in paragraph 5.5 is not being met or is in danger of not being met. It would be unfortunate if there were no watchful eye kept so that a real problem offending against the policy objective in paragraph 5.5 was upon the city before it was realised. But the fact that that could happen, through a lack of watchfulness, is not a reason for saying that it is even arguable that there is a inconsistency between those twin policy objectives.
19. I therefore reject the first of Mr Rumbelow's challenges.
20. I now turn to Mr Rumbelow's second challenge, the local authority acted with Wednesbury unreasonableness in requiring that every vehicle henceforth to be licenced, with certain exceptions, as one will see in a moment, should have wheelchair access. The relevant legislation is to be found in section 47(1) of the Local Government (Miscellaneous) Provisions Act 1976:
"A district council may attach to the grant of a licence of a hackney carriage under the Act of 1847 (a) such conditions (b) as the district council may consider reasonably necessary."
21. Mr Rumbelow accepts that it is appropriate for the local authority to say that there shall be some vehicles which have wheelchair access. He attacks the policy which requires that every new vehicle to be licenced shall be provided with such access. In order to see this challenge in context it is helpful to look at the history. When motor vehicles were first licenced as Hackney Carriages in the City of Newcastle, as no doubt in many cities other than London, the vehicles licenced were saloon cars. A change in the view of what was appropriate in the way of licenced hackney carriages came about -- Newcastle-upon-Tyne is not unique in this respect -- in favour of what is often called "the black cab", the kind of taxi cab with which we are familiar in London. More than that though, there was a desire that hackney carriages should be adopted so as to allow wheelchair access to provide better facilities for the wheelchair-bound disabled.
22. The City of Newcastle does not require that every new vehicle will be a black cab, but it does require under its policy (which I shall look at in a moment) map every one should be a vehicle equipped with wheelchair access. However, it was recognised that this requirement could operate harshly upon those operators who had come into the hackney carriage business under the older regime when wheelchair access for hackney carriages was a thing unthought of and not available and when hackney carriages in the provinces were much more often than not saloon cars, as opposed to the London style black cab. Consequently, the policy makes provision for those earlier licences. Indeed, it might be said, quite generous provision for them.
23. I return to the policy objectives:
"5.7 In the light of these objectives, the Council's current policy is:-
1. There are two specifications for vehicles within the City - wheelchair accessible vehicles and non-wheelchair accessible saloons."
24. I now read the part of 5.7.2 which I did not read earlier as well as the part I did read:
"All new applications to licence to a hackney Carriage (i.e. not as a replacement for an existing vehicle) must be in respect of a new wheelchair accessible vehicle. There is no limit on the number of the licences which will be granted.
5.7.3 Proprietors of vehicles numbered 339 and below who wish to replace their vehicles may provide a vehicle of either type.
5.7.4 Proprietors of vehicles numbered above 339 who wish to replace their vehicles must provide a wheelchair accessible vehicle."
25. In other words, special provision was made for those who were in the business at an earlier stage and they are, in some respects, in an advantageous position. I say 'advantageous position' because it is common ground that it costs less to provide a saloon car than the type of vehicle which would qualify for the new licence. I say a new licence, of course the licence is attached to the vehicle, thus where an old vehicle with a licence number of 339 or below is replaced, as I understand it, the licence for that vehicle is transferred to the replacement vehicle but, as I have pointed out, with the priviledge, if it is appropriate to call it that, attached to the earlier vehicle of not having to have a wheelchair access.
26. The City received conflicting representations on whether or not there were sufficient hackney carriages provided with wheelchair access. Mr Rumbelow accepts that it was appropriate, by way of a decision, to provide that some of the new licences issued should be to vehicles which had to have wheelchair access but, he argues, that should not be a requirement in respect of all of them. That submission gives rise to three considerations. First, how does the local authority decide what ratio there should be between those new vehicles which do have wheelchair access and those which are not required to have wheelchair access? It may be that, if it were the only consideration, it would be an issue to be resolved without over much difficulty.
27. The second consideration concerns the invidious decision which the Council would have to make; let us suppose a number of applications were made for Hackney Carriage licences, how is the decision to be made that these vehicles, to which these licences will be given, must have wheelchair access, but these need not? How is the City Council to distinguish between one operator applying for licences and another making, he would hope, a similar application, because of course the substance of this part of challenge is acknowledged: it costs more to provide a Hackney Carriage which has a wheelchair access than one which does not and implicit in that is the further proposition that it is less profitable, if one has to provide a vehicle with a wheelchair access, than if one does not have to.
28. The third consideration calls upon one to look at the situation through the eyes of the person who is bound to a wheelchair. It may be that there is an adequate number of wheelchair access Hackney carriages if one simply looks upon it as a statistical problem. If there are say five percent of wheelchair-bound potential passengers and already ten percent of vehicles which have wheelchair access, one might say that is an adequate provision. But what of the person who is waiting on the rank in his wheelchair for a Hackney Carriage and he is fifth in the queue. The first two may be the older type of vehicle with no wheelchair access. Then along comes vehicle number three which has a wheelchair access. It may well be that the people who are number 3 in the queue may not be willing to stand down and let the wheelchair bound person take their place. They go off in the Hackney carriage with the wheelchair access and then it may be that another such vehicle does not come to that stand for a long time.
29. The disabled person has to keep standing back again and again in the queue. That is not an unreal situation. The mere fact that you have a set percentage of vehicles, if that is the way it is to be done, which have wheelchair access, does not always mean there is roughly a sufficient number of such vehicles waiting or arriving roughly at the right time at this, that or the other rank.
30. In those circumstances, I can see very cogent arguments in favour of saying new licences should only be issued in respect of vehicles will wheelchair access so as to make sure the service is adequate for all. I bear in mind what is said in paragraphs 5.2 and 5.4 that there should not be invidious discrimination between one operator and another and that all new vehicles which are newly licenced should have wheelchair access.
31. In those circumstances, I can see no arguable Wednesbury challenge against the policy decision that all new vehicles should have vehicular access. It seems to me that is a way of ensuring achievement of the policy requirement of paragraph 5.4 and it is a way of ensuring that newcomers to the operation of hackney carriages, or those existing operators who obtain additional licences, should be competing on even terms and all suffering, if you like, the same handicap of having to provide vehicles which have wheelchair access. I reject that challenge also. That means I am quite unpersuaded that there is any arguable challenge. I refuse leave.
32. MR HOCKMAN QC: May it please you my Lord. I respectfully ask for the local authority's costs. My Lord, this was, with great respect, quite an ambitious application. It was not only an application to quash the policy, which is wide enough, it was also an application to quash licences granted since the policy was annunciated.
33. MR JUSTICE JOWITT: One of which was granted, I think, to Mr Hind?
34. MR PUGH: In fact there were three, my Lord.
35. MR HOCKMAN QC: It was an application for a declaration that any licences, in pursuance of the decision, should be regarded as not lawfully issued.
36. MR JUSTICE JOWITT: And a number of others than those issued referred to in the original bundle?
37. MR HOCKMAN QC: Yes. My Lord, all that against the background that the policy itself had stood for 18 months before this latest decision. I am not saying that would have constituted, as it were, a jurisdictional bar.
38. MR JUSTICE JOWITT: I considered that and thought it would not.
39. MR HOCKMAN QC: It plainly does not. It is something that perhaps can be borne in mind when the court is exercising its discretion in regard to the question of costs. It was an ambitious application to make.
40. Secondly, an application which I would respectfully urge on the Council's behalf, we had little alternative but to deal with, as it were, in the way that we have. We judged, if I may put it, with respect in this way, that the likelihood would be that no remotely satisfactory ground would be put forward. Of course the application did have the potential to greatly disrupt the proper running of the system within Newcastle. Mr Campbell's affidavit points out that groundless challenges can have the effect of damaging business confidence and of causing quite a lot of difficulty within the local area. We certainly felt, if I may say so, that this was the right way for the matter to be brought before the court. In particular, if an application for interim relief was to be made, that we should appear to argue that, which necessarily would involve arguing the question of principles as to whether there were grounds at all.
41. In those circumstances, I would urge that this is a situation in which costs should follow the event and in which the council taxpayers, or the licence holders, or the applicants' licences within Newcastle upon whomsoever the financial burden might otherwise fall, should not bear the costs and that costs should follow the event.
42. MR PUGH: My Lord, we make a like application. We have a specific and particular interest to protect. Once we were notified that an application for interim relief was to be sought, then it was reasonable to us to attend. Indeed, my Lord, we might have been criticised for not attending if your Lordship had granted interim relief and we came along at a later date seeking to argue the point.
43. MR JUSTICE JOWITT: Yes. Mr Pugh, It is not usual to order two sets of Respondents' costs unless there is some particular feature which makes it appropriate. Perhaps you can address me on that.
44. MR PUGH: My Lord, our specific interest is that we have the contract to service the Newcastle Central Railway Station. It is a major contract to provide a quality service. That would have been put at risk if interim relief had been granted. It is a particular interest which it was reasonable for us to come and protect.
45. The fact that the applicant has failed at a preliminary hurdle ought not to be an obstacle to us getting our costs. It is an interest which is discrete from that of the local authority although, to an extent, there is a degree of commonality but, it is a particular interest.
46. MR RUMBELOW QC: My Lord, if the application had succeeded, both today and in substance, then, in my submission,
it would have followed that any licences issued in pursuance of an invalid policy were themselves invalid.
47. MR JUSTICE JOWITT: It does not follow, we are only considering the leave stage, that you would have obtained interim relief.
48. MR RUMBELOW QC: My Lord, I accept that. Of course, the court, at any event, in his discretion, if it had granted leave and interim leave relief, could have said that the interim relief should only attach to any licences which were issued after the date of the application, not simply after the date of the decision.
49. MR JUSTICE JOWITT: But you were wanting a back-dated quashing. Back-dated in the sense all those licences issued so far under the continued policy should be set aside.
50. MR RUMBELOW QC: My Lord, we considered that was a logical situation which would arise if the policy were eventually to be declared invalid.
51. MR JUSTICE JOWITT: The question now is whether the logic is you having failed, you ought to pay the costs of the other two parties?
52. MR RUMBELOW QC: My Lord, I take the point that it is not normal to order two sets of costs. I appreciate that
53. Mr Hind has an interest in this matter, but his interest is, in a sense, no greater than any other interest of any person who has been issued with a licence, whose interests have been covered by the submissions made by my learned friend for the local authority.
54. MR JUSTICE JOWITT: In other words what you are saying is that Mr Hind should have left it to the City to argue his case for him. He should have had confidence in their persuasive powers.
55. MR RUMBELOW QC: In my submission, that is a matter that the court can take into account in exercising its discretion. Unless there were any overriding reason for granting a second set of costs, it would not be this situation, in my submission.
56. MR JUSTICE JOWITT: It is quite a substantial financial interest that Mr Hind had in today's outcome. If you had simply been asking for leave and you were not asking for any interim relief, certainly, not any interim relief against Mr Hind, that would have been a very different kettle of fish. I am not criticising you for having asked in the terms you did. I am simply saying what the difference might be.
57. MR RUMBELOW QC: My Lord, it might help simply to explain the chronology of the matter. When the application was originally issued, there was no application for interim relief in it. There were then discussions with the local authority. They were asked whether, if leave were given, they would then undertake not to issue further licences until the hearing of the substantive application. They declined to do that. That was very recent. It was in those circumstances that an application was made to amend the original application in order to cover that position.
58. MR JUSTICE JOWITT: You more than covered it. That is the difficulty. That is why Mr Hind is here today.
59. MR RUMBELOW QC: It is my Lord, but when the application was issued, so far as we knew and indeed until I received this morning the affidavit from the Council, I understood no more than that the two licences referred to in the application had been granted. True it is, one of them is Mr Hind's, one of them is not. In my submission, that position could have been adequately covered by the local authority.
60. MR JUSTICE JOWITT: Those instructing you could have made enquiries as to the number of licences issued?
61. MR RUMBELOW QC: My Lord, those instructing me did make enquiries. That is how they were able to provide those two details. We were given absolutely no indication, I was unaware until this morning, that any further licences had been issued or that Mr Hind was seeking to make representations. It may be that those instructing me knew yesterday afternoon or evening but, certainly, not so far as I am aware, in time for us to give any separate consideration to Mr Hind's situation.
62. MR PUGH: My Lord, I am afraid that does not accord with some of the details available to me in documentary form.
63. A letter dated 17th February from the applicant's solicitors informed us that this matter has nothing at all to do with Mr Hind when we asked to make representations and enquire whether or not it was the intention to seek interim relief. My Lord, it has a great deal to do with us.
64. MR JUSTICE JOWITT: That seems to be an unfortunate letter to write.
65. MR PUGH: My Lord, we have a major financial interest to protect. I would not be asking for my costs if this was just a question of leave but it goes beyond that.
66. MR JUSTICE JOWITT: I think you must pay the costs of the proposed respondent and of Mr Hind. I have well in mind the fact that it is not usual in judicial review to order two sets of costs to be paid by an unsuccessful applicant. I think here Mr Hind did have a substantial financial interest in the interim relief which was sought against him. In those circumstances, I think you should pay his costs as well as the City's.
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