Taxi Driver Online

John,
I wonder you do keep saying this about measuring demand, I know you get it from case law but I wonder if you can expand.

lets take a typical town lets say population 80,000 lets call it Halifax it does wonders for the mind.

lets have a survey done we will say by Halcrow Fox, after all they do a lot, and lets imagine that Halcrow reccomend 5 new cabs per year for 5 years.

now lets imagine the council dont implemement the proposals, and all applicants lets say I am one are not issued with a decision notice, so I have nothing to appeal on. (if I wanted too)

now lets imagine 2 and a half years later the licensing committee reccomend a survey but cabinet says no leave it all alone.

are you saying in those circumstances my lord, they can again go to survey and not issue a decision notice?

wonder what the wiggs would say on judical review? all hypothetical of course, any facts given here on actual events are coincidental.

by the way John I have an unwanted christmas present, do you think the reemergence of charlie could be sold on e-bay?

Because of the 1985 Transport act and in particular section 16 of that act Councils have had to measure public demand in some way in order to retain control on Taxi numbers. I know you know that and so do most if not all of the people who subscribe to this forum.

In the early years of the 1985 legislation councils were unsure of how to measure demand and it was left to the courts to guide them in that respect. You and most others also know that.

The very first cases surrounding unmet demand were settled on the basis that any council who wasn't sure of demand should issue licences until it was sure. The most famous protagonist in that line of thinking was Justice Nolan. You and most others probably know that too.

The first case to establish that a council could defer applicants was the Fareham case in 1986. The Judgement in that case made its way into circular 3/85. The case was ex parte B & J World (Hamiltax) 26 June 1986 Portsmouth Crown Court Judge Whitley presiding.

Although the Judge found in Hamiltax favour it was only a partial victory because the council presented three options to the court. It should be known at this stage that Hamiltax had asked for 16 licenses.

The third option that the council presented to the court was as follows.

"That it grants a proportion of the licences and defers consideration of the remainder until the effect of that action had been assessed. It also went on to say, "or phase the removal of quantity control over a number of years. This would cushion the effects on the trade and allow the problems, which could arise to be tackled on a gradual basis".

The Judge allowed the third option and suggested that four licenses be issued until the effect of those licenses had been assesed

That case offered those councils that still wanted to restrict numbers a lifeline.

In 1987 there was an appeal against the decision of Guildford Borough council to depart from the findings of a Consultants report on unmet demand. It was found that demand at certain times was unmet and that 12 licences would alleviate that demand. Guildford departed from the findings and only issued three licenses. The fourth person on the waiting list appealed and said the council had no right to depart from the findings. Judge Lermon QC agreed and concluded the following.

A local Authority is obliged not to refuse applications unless it can be satisfied that there is no unmet demand. The result of the survey showed that there was an unmet demand, which could be met by the issue of about 12 licenses. The council did not have to issue 12 it would be right for them to perhaps issue nine or ten or some other number approximating to the recommendations.

The Judge took the view that by issuing only three plates the council had significantly departed from the survey reports recommendations.

The cases establishing a councils right to change its policy from one of restriction to no restriction was the Sawyer v Great Yarmouth case and the Gravesham association of licensed hackney carriage owners v Gravesham borough council. They both applied for judicial review of the respective councils decision to de limit. Both applications were refused.

On appeal Lord Justice Woolf, Bingham and Dillon rejected the appeal. Stating a council's policy of de restriction could not in itself be attacked as being irrational.

The most famous case that most people recognise is the Nolan case. Nolan had before him two opposing sides where one side wanted the council to issue an unlimited amount of licenses and the other side namely the local Taxi association wanted the exact opposite. In the middle of all this was reading borough Council.

Dennis Francis Egan on behalf of the local Taxi association and Anthony Patrick Sullman a local Private Hire Proprietor both for different reasons wanted to quash a decision by Reading Borough Council, made on January 28th 1986 to issue 30 licences by way of ballot. Reading voted to issue 30 new licences and to reserve the right to measure the effect of these licences, according to circular 3/85.

To cut a long story short Nolan concluded that paragraph 28 of circular 3/85 incorporated an erroneous view of the law. Mr Justice Nolan said that a Council who was not sure of demand should issue licences without limit of number until it was sure of demand. He also said that the 1985 act had made no provision for an interim period during which licensing Authorities might establish whether unmet demand existed.

There is more to the Nolan statement but I needn't say anymore.

The big daddy of cases which is the backbone of current established case law is the Wakefield case of
Ghafoor and thirteen others v Wakefield District council and the subsequent appeal, which followed establishing the present case law.

Mr Ghafoor and his associates appealed a decision of Wakefield Council to refuse them licenses.
The appeal was dismissed in the crown Court and it went to appeal in the High Court.

The case questioned the reasoning of Justice Nolan's view of Circular 3/85, which he said incorporated an erroneous view of the law.

Mr Justice Webster disagreed with Nolan and concluded that a Council who was not sure of demand had the right to advise itself in one way or another about the number of Taxis which would need to be licensed in order to meet all significant demand. And having granted licences up to that number, from refusing the next applicant or applicants after that number had been reached.

The Judgement is protracted and it lay's to rest two or three items, which are significant in their own right but are nevertheless, well established.

The Judgement also highlights a particular scenario that you have posed here and I will no doubt be referring to it in due course. I will let you digest the background as to how our current case law came about before I move on to your hypothetical scenario regarding an Authority similar to that of Halifax.

I suspect you already know all of the above but it is helpful if I write it down in order for people to see where I am coming from when I answer the pivotal points of your questions.

Best wishes

JD

JD must stand for Judge Davis

Our good friend James Button believes that a long defferal amounts to 'with-holding' of a license, and accordingly gives a right of appeal under sec 7 of the Public Heath Act 1907.

Part of Kelly and Smith-v-Wirral 1996

Lord Justice Auld

In my judgment, the words and intention of Section 7 are plain. In the context of licensing, Section 7(1)(a) provides a right of appeal where a local authority has made a determination whether to grant or refuse a licence, and Section 7(1)(b) provides the same right where a local authority, by its failure to make a determination, withholds a licence. Here, the Council withheld a licence from Mr Smith by not deciding on his application. As Laws J mentioned, this interpretation may pose difficulties in determining the date of withholding for the purpose of fixing the start of the three weeks' appeal period, for example, where the local authority has no established cycle of licensing meetings. But the Crown Court will need to consider the particular circumstances of each case, bearing in mind always that withholding is a form of continuing inaction and that it may not be appropriate to adopt an overly rigorous attitude to the time limit for appealing in such a case. That is not an issue that could cause any difficulty for Mr Smith. Shortly after his third and last application for a licence in January 1993, his solicitors wrote to the Council seeking a decision within 28 days, and he lodged his appeal within a day or two of the end of that period.

I suppose it all boils down to what action a council has taken at the time of the application. If they have already put the funds for a survey aside, and have a start date for that survey, then they may be OK.

But if the application is handed in prior to the funds being set aside, or is the catalyst for the survey, then I think that amounts to 'with-holding'.

_________________
IDFIMH

Without having read the Survey and its recommendations one can only assume that the figure of five cabs per year over five years is correct. It just seems unusual that Halcrow would have projected five years ahead when it knows the shelf life of a survey is estimated at two to three years.

The case you put forward is straight enough and it might appear that an injustice had been done against those persons wishing to obtain a license. The fact that a survey recommended additional licenses immediately and subsequently, five additional licenses every year, for five years suggests that there was at the time this survey was undertaken demand which was being unmet.

The reason I laid out the current case law was because it is pertinent to your scenario.

I draw your attention to the 1987 case of Guildford Borough Council where there was an appeal against the decision of Guildford Borough council to depart from the findings of a survey on unmet demand.

It was found that demand at certain times was unmet and that 12 licences would alleviate that demand. Guildford departed from the findings and only issued three licenses. The fourth person on the waiting list appealed and said the council had no right to depart from the findings. Judge Lermon QC agreed and concluded the following.

A local Authority is obliged not to refuse applications unless it can be satisfied that there is no unmet demand. The result of the survey showed that there was an unmet demand, which could be met by the issue of about 12 licenses. The council did not have to issue 12 it would be right for them to perhaps issue nine or ten or some other number approximating to the recommendations.

The Judge took the view that by issuing only three plates the council had significantly departed from the survey reports recommendations.

Can you see a similarity in the Guildford case as to the Hypothetical case you asked me to consider?
The question you have to ask yourself and I am sure a court would ask of itself is "have the council departed from the survey findings and did they have a right to do so".

You can see by the Guildford case, that a Council, who is unsure of demand or who has indeed measured demand and found a demand to exist but does nothing at all about it, is liable to lose in a court of law.

Five additional licenses represent 13.5% of the Halifax Taxi fleet that's large in percentage terms even though the figure of five may seem small. Calculate that year on year for five years and it soon becomes apparent that demand is not being met.

There is also the Value of licenses to consider, which would suplement an applicants case should he decide to challenge the council on the issue you put forward.

With regard to non-notification of refusal, I find that strange because it is up to the applicant to pursue his grievance and if need be force the council to make a decision one way or the other. If a council refuses to make a decision you can make it do so with an order of Mandamus. The order requires the council to carry out its public duty. There really is no excuse for not getting a decision.

Deferment does not mean indefinitely, deferment only applies when a Council is unsure of demand, in the scenario you present the council is fully aware of demand, yet proposes to ignore the demand.

A council is not obliged to undertake a Survey as we all know but if it wants to successfully defend it's restricted numbers policy then it has to measure demand in some way. That is case law. A council cannot state there is no unmet demand unless demand has been measured. The burden of proof is on the council.

You mention that a Council decided not to have a survey in Halifax, that is entirely their prerogative and consistent with the law. The Judgement of Webster in the Wakefield case points out the parameters in which a Council can avail itself of the satisfaction of the law. Once a council is aware of an application, doing nothing is not an option. However a council who has a policy of limiting numbers will not go out of its way to accommodate the applicant so it is incumbant on the applicant to pursue proceedings without delay.

I think the points you raised have been answered, if they haven't then you have the case law before you to help you come to a fitting conclusion.

Best wishes

JD

You will find that in most instances licensing appeals carry a sell buy date of 21 days. This does not apply to taxi licensing because it is deemed to be ongoing. There are lots of references to deferment and what constitutes withholding a decision. At the end of the day it comes down to what constitutes a reasonable time frame.

With regard to H/C proprietors licence it has been pointed out that a Council can measure demand before it issues a license. The time frame for such an exercise must not be unduly long.

Justice Popplewell in the Middlesborough case ex parte J H Cameron, said that "A decision by a local Authority to defer for the matter of a few weeks, its decision whether or not to grant hackney carriage licenses pending a survey to determine whether there was unmet demand for Hackney carriages in the area, was not a refusal to grant the licenses and was not in breach of the local Authorities duties under section 16 of the 1985 Transport act.

There are lots of references as I have already said concerning deferment but perhaps the most famous is Lord Denning's assertion that "deferment is tantamount to a refusal and should be treated as such"

Maybe we should start a thread on Deferment?

Best wishes

JD

The thing is JD is that it would soon vere off to another different issue.

_________________
IDFIMH

John
If you send me a forwarding address I will happily send you a copy of the £10 report.

the report concluded on no significant unmet demand for Halifax, but found plate values gave evidence of unmet demand, it also concluded that the taxis were making "to much profit"

it requested a 2 year fare freeze.

I think the likes of Halcrow give a sop to those wanting a plate, even when no SUD is found, by saying that if a council issue say 5 a year then a) if they are WAV, it helps keep the disabled lobby happy, and b) it could help keep in line with any SUD inflation.

Of course we all know a way that that can be done without the like of Halcrow telling us, but it would seem common sense doesn't work too well in Halifax.

_________________
IDFIMH

Well Depends Sussex, one could say sense isnt common in Halifax.

problem is this taking someones investment of £70,000 off them takes some courage, not in the rules of consideration but a point to mention.

I think Halifax would welcome a challenge in the courts, pity the poor sod that does it.

went out side a nightclub about two years ago, was told by a private hire driver that it was "thier rank" what happened next I an prepared to tell only by pm, but it was nasty.

i was only dropping off!

Come on then Geoff PM the details.

to whom Sussex?

No me

I can imagine that the lads at the PH 'rank' believed it to be their's because no-one had told them that it wasn't their's.

In other words the local LOs weren't, and more than likely still aren't doing their jobs. Perhaps the council are scared of someone pointing out to them all this un-met demand, that isn't being met by the taxi trade.

_________________
IDFIMH

Nige I might as well print it on the forum and I dunna wanna do dat