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The Queen v. Metropolitan Borough Council of Wirral, ex parte. the
Wirral Licensed Taxi Owners Association.

In the English High Court (Queen's Bench Division)

QBD

( Mr. Justice Glidewell.)

9 September 1982

Imports. Quantitative restrictions. Indirect barriers.

For a local council to require all licensed taxis in the borough to be of a particular type (the 'London-type taxi') which is manufactured only by one, British, motor manufacturer would be a barrier to imports from other member-States contrary to Article 36 EEC.

But to redraft the requirement in the form of a more general specification, which it would be open to any EEC manufacturer to meet, removes the discrimination. [42]

The Wirral Council resolved that all taxis operating in the borough should be the London-type 'FX4' cab. It was warned by the Home Office that this might infringe Article 30 EEC, since it would prevent EEC motor manufacturers from selling vehicles for the Wirral taxi fleet and thus restrain imports.

The Council thereupon replaced the specific requirement with a more generally worded specification which described the London taxi and excluded any normal production cars but which would allow any willing EEC manufacturer to make and supply acceptable vehicles. The local taxi-owners association sought judicial review and annulment of the Council's resolution. Held, dismissing the application on English administrative law grounds, that while the first formulation might have violated Article 30 the revised wording did not.

Representation

R. Tucker QC, with him S. Brown, instructed by Layton & Co., for the applicant association.
C. L. Stannard, instructed by P. J. Mills , Director of Administration and Legal Services of the Wirral Borough Council, for the respondent Council.

The following cases were referred to in the judgment:

1. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation: [1948] 1 K.B. 223.

2. Secretary of State for Education v. Tameside Metropolitan Borough Council : [1977] A.C. 1014.

3. Pyx Granite v. Ministry of Housing and Local Government: [1958] 1 Q.B. 554.

4. Fawcett Properties v. Buckingham County Council: [1959] 1 Ch. 543.

JUDGMENT

GLIDEWELL J.:

[1] The combined effect of sections 37 and 45 of the Town Police Clauses Act 1847, which was applied to all boroughs by section 171 of the Public Health Act 1875, though indeed in Wirral it was also adopted by the new Wirral Metropolitan Borough Council by a specific resolution of the Council, is that a hackney carriage plying for hire is required to be licensed by the local authority: in Wirral that is of course the Wirral Metropolitan Borough Council. The Act also provides that the Council may make byelaws regulating the various aspects of hackney carriages.

[2] The Local Government (Miscellaneous Provisions) Act 1976 , which was adopted by the Council with effect from 1 July 1978, provides by section 47 :

(1) 'A district council may attach to the grant of a licence of a hackney carriage under the Act of 1847 such conditions as the district council may consider reasonably necessary.

(2) Without prejudice to the generality of the foregoing subsection, a district council may require any hackney carriage licensed by them under the Act of 1847 to be of such design or appearance or bear such distinguishing marks as shall clearly identify it as a hackney carriage.

(3) Any person aggrieved by any conditions attached to such a licence may appeal to a magistrates' court.'

[3] The following provisions of the 1976 Act relate not merely to hackney carriages but to private hire vehicles, and a major point of the Act is to bring under the licensing control private hire vehicles which are, I suppose, a type of public or quasi-public transport of relatively recent development. Section 48 requires that such vehicles are also to be licensed and makes specific provision for the matters about which the Council have to be satisfied before they grant a licence. Then there are a number of following provisions which relate both to licences for hackney carriages and licences for private hire vehicles.

[4] I am here concerned with a challenge to a condition which by resolution the Metropolitan Borough Council proposes shall be inserted in every hackney carriage licence, the effect of which is, putting it quite shortly, that in future hackney carriages shall comply with a particular description so that in effect licences will only be issued to hackney carriages which meet a particular specification.

[5] I should say at once, though the point has not been argued before me, that one way in which this matter could have been dealt with would have been to appeal the issue of a licence containing such a condition to a Magistrates' Court; and there might have been an argument that since this Court is very much a Court of last resort so to speak, and that it normally, though not infrequently, refuses to grant relief where there is an alternative remedy available which is not being pursued, the Court should not entertain the application unless and until an appeal to the Magistrates' Court has been pursued and in some way conducted improperly.

That point has not been taken, and although I comment upon it, I am not going to base any part of my decision upon that point. It may be in the particular circumstances of this case it is not a good point, because of course the advantage of coming to this Court first is that at least the decision of the Court is known in advance of, or, to be precise, not very long after, the date when the resolution of the Council comes into effect.

[6] For some years the Wirral Metropolitan Borough Council and the relevant committee of the Council, which is the General Purposes Committee, have been considering the imposition of a condition of the type to which I have referred, that is to say, requiring that hackney carriages shall be of a particular description.

In September 1976 a body called the Merseyside District Sub-Committee Wirral of course being one of the Metropolitan Boroughs in the Metropolitan County of Merseyside issued a recommendation in a report and Mr. Mills, who is and was the Director of Administration and Legal Services of the Borough Council, referred to that, and indeed exhibited to it a report which he himself made on 14 September 1976 to a meeting of the General Purposes Committee of that date.

The Metropolitan Sub-Committee had said that the working party which they had set up considered that there were no cogent acceptable arguments why the traditional differences between hackney carriage and private hire vehicles should be continued. Rather there should be legislation to provide for a unified system of public carriage vehicles. That, of course, is a matter for legislation, local if not general, and in the absence of such legislation the difference persists.

[7] The Sub-Committee then went on to say:
'If the ill-founded differences are to be continued however it is preferable that: (a) both sectors of the trade should be controlled through a licensing system such as is set out in the Marshall amendments; (b) all hackney carriages should be metropolitan type cabs for ease of identification and general suitability as a vehicle; and (c) all licensed private hire vehicles should meet certain approved criteria, e.g. 4 door, saloon car of a certain seating capacity with luggage space.'

[8. The reference to a 'metropolitan type cab' is a reference to what in every-day language is known as a taxi, which is in general like the London taxis--taxis which have for some 50 years been familiar on the streets of the Metropolis, and which are also to be seen on the streets of some of the large cities of this country. One thinks of them familiarly as London type taxis.

[9] As I say, Mr. Mills reported to the Committee meeting on 14 September 1976, and he said this: 'The Committee may find the following comments helpful in making their observations' on the report of the Working Party to which I have already referred. When he came to consider the types and numbers of vehicles, he said: 'Metropolitan type cabs are comparatively expensive vehicles and the requirement that they should be the only type licensed as a hackney carriage was abandoned in Birkenhead some years ago.

They are particularly suitable for certain journeys when the passenger is also transporting luggage but the larger saloon cars are often equally suitable. There are certainly advantages in having easy identification but this can be achieved by other means, e.g., a coloured roof or flash. It is true that a hackney carriage plate has a value, and often a not inconsiderable value.

However, the argument against leaving it to market forces is that unlimited issue can flood the market with part-time drivers during the lucrative periods of the day, e.g. evening'. I think that is really germane to numbers rather than to the matter that I have to consider.

[10] As I say, Mr. Mills reported to the Committee on 14 September 1976, and at that time it seems that no decision, one way or another, was made, but the Committee did indeed adopt a resolution that it recommended that a standard colour should be permitted as an alternative to a taxi type hackney cab.

[11] On 26 January 1978 Mr. Mills reported again on proposals for adopting the 1976 Act, which, as I have already said, was not then in force in the Borough, and making new byelaws. In that report he advised: 'A decision on the type of hackney carriage vehicles to be used by proprietors will be required before the introduction of the Wirral plate.

Most authorities insist on Metropolitan "FX4" type of cabs. Alternatively, a uniform colour could be required. It is proposed to invite the views of the hackney carriage proprietors on this point when they are written to in connection with the Wirral plate byelaws' . I stop to comment that the reference to a uniform colour is clearly a reference to some distinguishing feature which would distinguish hackney carriages from private hire vehicles and not to any other aspect of the matter.

[12] On 27 January 1978 Mr. Mills, on behalf of the General Purposes Committee, wrote a letter which was sent generally to all proprietors of hackney carriages. In it he advised them that the Committee would be requested to pass a resolution which would bring into force a 'Wirral Plate', and decide to adopt the 1976 Act to coincide with the introduction of the Wirral Plate. Then he went on and said this:

'The Committee have been made aware at the meeting on 26 January of certain decisions which will have to be taken on 16 March with regard to certain aspects of hackney carriage and private hire licensing. Briefly the matters affecting the hackney carriage trade are as follows: (a) Whether to insist upon "FX4" type cars as hackney carriages or alternatively agree to the use of suitable private vehicles possibly to be identified by an identical colour ...'.

[13] At the meeting of the General Purposes Committee on 16 March, Mr. Mills again reported. As a result of the letter going out on 27 January, objections and representations had been received, *154 including a letter of objection from the Association whom the present applicant represents, The Wirral Licensed Taxi Owners Association, who have consistently been, and remain, opposed to any requirement that either a Metropolitan 'FX4' or any other similarly described type of vehicle be required for use as a hackney carriage, and a letter from the Wirral Private Hire Association who, not surprisingly, are enthusiastic in their support of such a proposition. The members of the Private Hire Association presumably take the view that the adoption of such a restriction on hackney carriage proprietors is to the advantage of them, the private hirers. Quite apart from those letters, there were a number of other letters of objection received, and all of these were put in front of the Committee by Mr. Mills.

[14] Mr. Mills told the Committee of a number of decisions which were now required, and then in relation to the type of vehicle he said this: 'At the present time there is no restriction on the type of vehicle that can be used though the byelaws lay down strict requirements as to suitability. Of the 86 cabs licensed at the moment only 3 are Metropolitan FX4 cabs which are generally regarded as being more suitable for city centre use. Insistence on Metropolitan cabs could cause hardship, especially if the change was made overnight, as these are very expensive vehicles. A uniform colour and/or a distinguishing sign would be an alternative. In this connection

The Wirral Licensed Taxi Owners Association has suggested a specific sign, details of which will be provided. Any requirements as to identification would require an alteration to the draft byelaws. It should be pointed out that many of the private-hire proprietors feel that the hackney carriage trade should be restricted to FX4's which would enable the public to differentiate more easily between the two vehicles of the trade'.

[15] At that meeting the Committee passed a long resolution, concluding with a recommendation, 'That the FX4 type Metropolitan cab only be authorised for hackney carriage purposes from 1 July 1982, and that notice be given in due course for the proposal to vary the byelaws but, in the meantime, both FX4 and saloon type cars be authorised, subject to saloon cars being identified by means of a permanently displayed roof sign, to be approved by the Director of Administration and Legal Services'.

[16] When that recommendation came before the full Council, that part of it was not adopted by the full Council, who referred it back to the General Purposes Committee, and it got back there at the meeting on 1 June 1978, when there was yet another report from Mr. Mills. That repeated the paragraph I have just read of his report on March 1978, and then went on to say:

'The arguments for Metropolitan FX4 cabs can be summarised as follows:

(1) they are purpose built vehicles designed for hackney carriage work;

(2) they are clearly recognisable by the general public as hackney carriages and there is, therefore, no risk of confusion with private hire vehicles;

(3) they have a longer life than saloon vehicles.
The arguments against are:

(1) they are more expensive to buy than saloon vehicles;

(2) maintenance is more difficult and more expensive;

(3) there is a more restricted second-hand market;

(4) they are less suitable for long-distance work and journeys on The Wirral tend to be of longer distance than in say, Liverpool;

(5) there are other ways of differentiating between hackney carriages and private hire vehicles, e.g. by the use of signs or special colours and different licence plates.'

He makes the point, which the Committee no doubt were well aware of, that the Taxi Owners were generally against such a provision and the taxi hirers were generally in favour, and he said: 'The following points may assist the Committee in reaching a decision'. First of all he sets out the relative cost of an FX4 as against a Cortina, a Marina and a Granada 2 litre motor car and then he says: 'The Council is bound by law to ensure that a licence is not issued for any private hire vehicle which is of such design or appearance as to lead any person to believe that it is a hackney carriage.

There is a need therefore to ensure that the two types of "taxi" cannot be confused by the public. Insisting on FX4's is obviously the best way of achieving this but there are others, e.g. requiring a distinctive roof sign and/or colour identification coupled with a prohibition against any signs on private hire cars'.

[17] That report led to the Committee recommending that its original decision of 16 March 1978 be re-affirmed, and after a debate in the full Council, at which an amendment to that resolution was moved and lost, that was this time approved by the Council. In other words at the meeting of the Council on 21 June 1978 the Council adopted the policy that as from July 1982 hackney carriage licences would only be granted in respect of FX4 Metropolitan type vehicles.

[18] That was not an end of the discussion. In November 1979 there was a request from the Association that the Committee should reconsider its decision. That went before the General Purposes Committee on 6 December 1979. By this time, according to a further report put in front of the Committee, the number of Metropolitan type cabs in the Borough had grown from 4 to 18, and the request to the Committee to change its decision was refused and the decision was re-affirmed in December 1979.

[19] But there was a further similar request for reconsideration which came before the Committee on 27 May 1981. That came from solicitors currently instructing Mr. Tucker on behalf of the Association, who not merely requested that the matter should be reconsidered, but sought permission for one of their partners to address the Committee, and that request was granted. So the Committee, when it met, was addressed by a gentleman on behalf of the *156 Association--the solicitor on behalf of the Association--and they again had before them yet a further report from Mr. Mills, which, amongst other matters, contained a part of the letter from Messrs. Laytons, which had led to the Committee considering the matter in the first place.

[20] The Committee on 27 May deferred making a decision, but it met again on 28 May--it suggests to my mind that time was running out on 27--and after further consideration it was resolved that the request be refused and the minute of 1 June 1978 be re-affirmed. and it was resolved that as from 1 July 1981 no hackney carriage licences be issued for a period extending beyond 1 July 1982 in respect of a saloon type vehicle. That May 1981 resolution was duly confirmed by the Council on 17 June 1981.

[21] As far as the principle of the matter is concerned, that was the final decision. But not very long afterwards, on 27 August 1981, the Home Office wrote to the Director of Administration and Legal Services, making the point that the resolution which had been adopted back in 1978 and re-affirmed, as I have said, twice, might be said to be a contravention of the Treaty of Rome, the European Communities Treaty. I must deal with this point quite shortly. Indeed it is one of the bases of one of Mr. Tucker's submissions.

[22] The basis of the point is that Article 30 of the Treaty provides that quantitative restrictions on imports and all measures having equivalent effect 'shall, without prejudice to the following provisions, be prohibited between member-States' . What is suggested might be said is that if the requirement is that a licensed hackney carriage must be of the FX4 type, which at the moment is a type made only by British Leyland, that is a restriction which reduces to nil the number of vehicles for this purpose which can be imported from any other member-States of the European Economic Community, and thus would prima facie be a breach of Article 30.

[23] This argument is neatly set out in the Home Office letter.

[24] When Mr. Mills came to consider this letter, he obviously thought that there was something in it, putting it in every-day language, and he concluded, and so advised the Committee, that perhaps it would be better if they substituted for the resolution they had already passed, and which now effectively was some four years old, a requirement that instead of being of a particular type, licensed hackney carriages should answer a detailed description or specification, and the specification which he suggested and had in mind, which they have indeed adopted, is the specification that is used in London to describe taxi cabs in the Metropolis.

[25] While he was considering this, on 10 March 1982 Mr. Mills wrote to Messrs. Laytons, solicitors to the Taxi Cab Association, and he said this: 'For your information I am shortly to recommend to the Council's General Purposes

Committee that there should be a variation in the specification required of any vehicle to be licensed *157 as a hackney carriage. Instead of describing it as a metropolitan type (which is apparently regarded as being synonymous with an Austin FX4) I will suggest that the Council adopt a fairly detailed specification with conditions of fitness. This will require the vehicle to have a number of characteristics not found in a normal saloon car, e.g. a driver's compartment, free floor space, tight turning circle and passenger doors of a special size and height. The FX4, and I believe a vehicle made by Volkswagen, at present meet this specification. Other manufacturers may seek to enter the market in the future and this revised specification will cover them.'

If indeed the Volkswagen company do manufacture a vehicle which meets those specifications, nobody in this Court seems to have seen one or to know anything about it. It may be that that was a misunderstanding on Mr. Mills's part. Be that as it may, he wrote that letter. I will come back to that letter, because this is again the foundation of another of Mr. Tucker's points.

[26] Mr. Mills in his affidavit says this:
'Following further correspondence with the Home Office I decided that, for the avoidance of doubt, the Committee should be asked to adopt a specification based on the "Conditions of Fitness" required by the Public Carriage Office in London.

The Solicitors representing The Wirral Licensed Taxi Owners' Association were informed of my intention on 10th March 1982. A copy of the letter is exhibited marked "PJM 24". The said solicitors made no representations in answer to that letter. I submitted a report on the matter to the General Purposes Committee on 18th March 1982. Copies of that report and of the recommendation of the Committee (minute 90) are exhibited marked "PJM 25" and "PJM 26" respectively. The recommendation (that as from 1st August 1982 all hackney carriage licences be subject to a condition that the vehicle complies with the specification and conditions of fitness now indicated) was adopted by the Council on 21st April 1982.'

[27] That report, under the heading 'Specification and Conditions of Fitness' says, amongst other things, 'The metropolitan type cab meets the requirements of a hackney carriage: it has a high standard of safety, it is robust, is well designed for carrying fare paying passengers and is easily distinguishable ...'. It is noticeable that the characteristic of distinguishability has now become the last item on the list so to speak.

[28] Mr. Mills says of the decision of the Committee at that meeting and the earlier decisions:

'The arguments which appeared to me to persuade the General Purposes Committee and the Council in reaching their said decisions are as follows:

(a) vehicles will have a high standard of safety appropriate for public hire;

(b) vehicles will be suitable and adequate for the purposes of public hire in that, for example, they will (i) have adequate seating space and leg room providing reasonable privacy for passengers *158 and ample luggage space and (ii) be extremely manoeuvrable in heavy traffic;

(c) vehicles will be sufficiently robust and durable to stand up to the demands placed upon hackney carriages;

(d) vehicles will be readily recognisable in appearance and easily distinguishable from private hire vehicles.'

[29] Before I go to Mr. Tucker's submissions I should say this, that it is apparent, not least from Mr. Mills's own reports but also from a number of affidavits that are before me upon this matter, that there are two genuinely held and conflicting views as to the desirability and suitability of the metropolitan type cab as a hackney carriage, at least in an area such as The Wirral.

The Wirral is not a main city area. It contains a number of large towns, of which Birkenhead is the largest, but it also includes areas which are, if not rural, at any rate semi-rural and other delightful residential areas. Indeed Mr. Tucker at one stage was tempted to describe it as being almost entirely rural, but realised that that was not wholly accurate.

There clearly is a case for saying that the type of vehicle which is adapted to big cities may well not be the most suitable for an area of a different sort where distances are longer and where the journeys that many people are making are of a different sort.

These are arguments pro and con. Some proprietors, having adopted the metropolitan type of cab find it utterly suitable, others do not like it, and there is no doubt that they are somewhat more expensive, appreciably more expensive than comparable saloon cars; they are not easy to get, they are run on diesel and servicing is more expensive. There are lots of disadvantages to set against the undoubted attractions which in some respects they have.

[30] It is not part of my job to act as a Court of Appeal. I rather think the Magistrates' Court could in fact if the matter had been put before them. That is not my function, it is not for me to decide. It is merely for me to know that there are arguments on both sides whether this is or is not the most suitable vehicle for the purpose.

[31] Mr. Tucker makes three submissions to me. The first and principal submission is this, that it is apparent from the material before me, the relevant parts of which I have sought to summarise, though it was a good deal more extensive than to what I have referred, that the Council's sole purpose in finally passing the resolution which is sought to be quashed, namely the resolution adopted by the Council on 21 April this year, is to ensure that hackney carriages are readily and clearly distinguishable from private hire vehicles.

And, says Mr. Tucker, since that purpose can just as well be achieved by ensuring that hackney carriages are painted a particular colour and/or bear distinguishing signs, it is an improper use of the Council's powers to impose the requirement that the vehicles shall be in effect the metropolitan type of cabs. It is not reasonable and it is unfair to hackney carriage proprietors as against private hire drivers who do not of course have any such requirement or a similar requirement imposed upon them.

[32] A step in Mr. Tucker's argument, which I have already indicated to him I agreed with and which Mr. Stannard did not seem to controvert, is that though by its latest resolution the Council has now adopted not a simple reference to a metropolitan type of vehicle, the FX4 type, but the more complex specification, nevertheless the specification effectively achieves the same result.

Many passages in the specifications are applicable equally to metropolitan type vehicles and to saloon cars, the requirements of structural safety and matters of that sort. But the requirements relating to, for instance, the size of the doors, the size and shape of the vehicles themselves, the turning circle, the hingeing of the boot-lid are requirements which certainly are not met by standard production of saloon cars and are met by the metropolitan type cabs, though it is now open of course to any continental manufacturer, if he so chooses, to make a vehicle which combines that description.

Nevertheless it is a description which delineates a vehicle which, whoever made it, would be recognisable as something like a London type taxi cab.

[33] Mr. Stannard's reply to this first submission of Mr. Tucker's is twofold. First he says that I should find that this purpose of achieving a distinction between hackney carriages and private hire vehicles was not the Council's sole purpose: their purpose also was to ensure that vehicles used as hackney carriages in the Borough are safe as well as distinguishable, and he points, amongst other matters, to the passage I have already read in the letter from Mr. Mills to Messrs.

Laytons on 10 March 1982, where he sets out the ways in which he says the metropolitan type cab is best suited: high standard of safety, robust, well designed to carry passengers and easily distinguishable. But secondly, says Mr. Stannard, even if Mr. Tucker is right and this was the Council's sole or main purpose, nevertheless it is a purpose which is clearly within the wording of section 47(2) of the 1976 Act, which, I remind myself, provides, 'Without prejudice to the generality of subsection (1) a district council may require any hackney carriage licensed by them to be of such design as shall clearly identify it as a hackney carriage.' Subsection (1) is a much wider provision. It entitles the Council to attach such conditions as they may consider reasonably necessary.

[34] In reaching a conclusion on those two opposing submissions, the first thing I have to decide is what as a matter of law is this Court's power to interfere with the decision of the Council? What are the limits of the Court's powers? To put it the other way round, what are the limits of the Council's powers? Subsection (1) of section 47 is very widely worded: 'such conditions as they may consider reasonably necessary.' But it is agreed on all sides that there are some limits on the Council's discretion under that subsection.

[35] I have no doubt at all that the foundation of those limits is to be found in the very well known passage from the judgment of Lord Greene MR, in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation. [FN1] There are two passages, the longer of which begins at page 229 and goes over to page 230, and then his Lordship, at the end of his judgment, came back to summarise in a passage at page 233, where he said,

'I will summarise once again the principle applicable. The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account.

Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere.

The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.'

[36] That passage has of course been referred to time and time again in matters relating to exercise of administrative decision. I was helpfully referred by Mr. Stannard to two sentences in the speech of Lord Diplock in the Secretary of State for Education v. Tameside Metropolitan Borough Council, [FN2] in which he said, dealing with the meaning of reasonableness, 'My Lords, in public law "unreasonable" as descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art.

To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.' That is what has become known in the jargon of administrative law as 'Wednesbury unreasonable.'

FN2 [1977] A.C. 1014 at 1064E.

[37] Mr. Tucker suggested to me that I might find helpful, and I do, references to conditions imposed and the limits of the planning authorities on the power to impose conditions on the grant of planning permission. In that respect he referred me to a passage in the judgment of Lord Denning in Pyx Granite v. Ministry of Housing and Local Government, [FN3] where his Lordship said:

'The principles to be applied are not, I think, in doubt. Although the planning authorities are given very wide powers to impose "such conditions as they think fit", nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, how very desirable that object may seem to them to be in the public interest'.

FN3 [1958] 1 Q.B. 554 At 572.

[38] I agree with Mr. Tucker that that applies here too. and so for instance, if it should be the case that the Council's object in adopting this provision was to benefit the members of the Private Hire Association at the expense of the members of the Hackney Carriage Association, or for the benefit of the manufacturers of metropolitan type cabs, those would be ulterior objects because they clearly are not proper objectives of the licensing system of the 1847 and the 1976 Act.

That the Pyx Granite test is a reflection of the Wednesbury test is I think made clear by another decision in planning law which followed pyx granite very rapidly, namely Fawcett Properties v. Buckingham County Council, [FN4] where two of the three members of the Court of Appeal specifically cited Lord Denning and then referred to that as being in effect an instance of the application of Wednesbury as, with all respect, I think it clearly is. In other words if a condition is intended to achieve an ulterior object, it means that the Council have taken into account an irrelevant consideration, and thus have not acted within their powers.

FN4 [1959] 1 Ch. 543.

[39] What are the Council's functions under this legislation in relation to the licensing of taxi cabs? As I see it they are to achieve, so far as they can, the safety, convenience and comfort of passengers in hackney carriages, the safety of other road users and to ensure that there is some way in which those who wish to use either hackney carriages or private hire vehicles can readily distinguish the one type of vehicle from another.

That the last is a proper object is to my mind made clear by section 47(2) of the 1976 Act. I conclude, on the material before me, that the Council's primary purpose was indeed, as Mr. Tucker suggests, to introduce a requirement which served to distinguish hackney carriage vehicles from private hire vehicles.

But I cannot find that it was the sole purpose, nor can I find that in arriving at its decision, the Council did not take into account other factors. Putting it the other way round, I am satisfied on the material before me that the Council did take into account other factors: safety and convenience. It was not only entitled to do so, but was obliged to do so and it did so.

What I think in effect the Council has done, through its relevant committee and the assistance of the various reports it has had, is, it has said 'We want to ensure that hackney carriages are readily distinguishable from private hire vehicles. We are told that it could be done simply by ensuring that hackney carriages are all of one colour, or bearing distinguishing signs, or we could require that they are of a particular description. If we adopt the latter requirement it will have the added advantage that we shall be ensuring that the vehicle does have the advantages of robustness, added safety, added convenience of passengers, and that is our view.

Thus we take those matters into account in deciding that that is the best way of distinguishing'. I know I am interpreting what the Council has said. This is in effect what is to be read into the reports of Mr. Mills. I cannot say that in arriving at its decision the Council either took some irrelevant consideration into account, or came to a conclusion to which no reasonable authority could ever have come.

[40] I have not forgotten that Mr. Tucker, under this head, submitted to me that the decision was in a general way unfair to hackney carriage proprietors as opposed to private hire operators and that if I so find, I should quash the decision. With respect to that submission I do not think that unfairness in this generalised sense is a matter for me to decide about. What the Council is concerned to do is to take account of all relevant, and no account of irrelevant, considerations.

As I say, there is no evidence that they failed in that duty. Fairness comes in in the requirement that they shall properly give opportunity to people to make representations to them and shall listen to them and take them into account when they have been made. That is Mr. Tucker's submission. But as to whether a particular decision bears more harshly on one group of people than another, the law does not provide that that of itself is a ground for quashing that administrative decision. No doubt any sensible council would take it into account, but it is not a matter for me as I see it.

[41] The second point is about the European Community which I have explained I hope sufficiently clearly. Mr. Tucker invites me to say that what I ought to do is to refer to the European Court the determination of the question whether the Council's present resolution offends against Article 30 and the following Articles of the European Treaty.

[42] I have a discretion whether to do so or not. I have clearly decided that I should exercise my discretion not to do so. I myself am clearly of the view that though the earlier resolution might have been offending against Article 30, the present resolution does not. I would regard it as merely time wasting and not in the end productive of any useful purpose to adopt this suggestion Mr. Tucker invited me to take.

[43] That brings me to his third point, which is another allegation of unfairness of a totally different sense. As I have made clear, and he made clear in his submissions to me, at all stages in this consideration up to and including May 1981, whenever the taxi cab association wanted to make representation they were invited to do so, allowed to do so and the representations were reported and taken into account, and they included, as I have said, an address from a gentleman from Messrs. Laytons to the meeting in 1981. Clearly Mr. Tucker has no complaint about any of them.

[44] What he says is that when the letter which told Messrs. Laytons that the Council were going to change from a description of *163 the vehicle as a metropolitan type cab to the adoption of the specification as a means of identification, the Council failed to live up to the proper standards of giving an opportunity for comment, and they failed to do so in two ways:

first, because although the letter says 'I am shortly to recommend to the General Purposes Committee there should be a variation', it does not say when the meeting of the Committee is to be, and secondly, because it does not invite any representations to be made. I think Mr. Tucker was perhaps also making a third submission that in fact in fact insufficient time was given, because the meeting of the Committee was eleven days after the writing of the letter. It was too short a period, but it was certainly over a week.

[45] Mr. Stannard in reply says firstly that it is clear what the Association were concerned about was the principle, not the mechanics (and the change from describing the vehicle as a metropolitan type cab or FX4 to this detailed specification, as far as the members of the Association were concerned, was the mechanics), it does not achieve any different total result as far as they are concerned, and thus they were really not concerned as to how the resolution of the Council was worded. Thus, says Mr. Stannard, there was nothing about which they would want to make representations.

[46] At first Mr. Tucker, I think in answer to me, was inclined to agree with that, though in his final address to me he did say that the Association might have wanted to make representations about some detailed specification, though he did not indicate what it was.

[47] Secondly, says Mr. Stannard, on the additional material which he puts in front of me, which is a number of minutes of the Association itself, it is pretty clear that before they received this letter they had already decided to take legal proceedings against the Council in respect of the resolution. So the legal proceedings were clearly in respect of the decision rather than the detail.

[48] Thirdly, he said, had Messrs. Laytons wanted to make representation or the Association wanted to make representation, they would not have hesitated to do so. It was perfectly open to them to find out when the meeting was, and if they thought that the time was not sufficient, they could have asked for a delay. They did not do any of these things. They did not write, they did not make representation and the Council has not in any way behaved improperly.

[49] I suppose that it is right to say that it might have been better if the letter had said 'Do you want to say anything about this? If so please do so in the next few days', or something like that. Nevertheless I agree with Mr. Stannard. I agree with both the major points he makes. First of all it does seem to me that the Association were concerned about the principle behind the matter, they did not display any enthusiasm about making representation about the delay about specification, and secondly, if they wanted to make representation, I am sure they would have done so. All the representations they had made in the past were received, they had not done any good.

They had not been acted upon, but they certainly have been listened to. Represented as they are by so distinguished a firm as Messrs. Laytons, I am sure they would not be hesitant about making representation. Indeed if it was thought that they would be useful, they would have been made.

[50] Accordingly I cannot agree with counsel on unfairness in breach of natural justice in this respect and it follows that on that ground also the challenge so vigorously advanced by Mr. Tucker on behalf of the Association fails.

[51] The application therefore must be dismissed.

Application dismissed.