Sussex wrote:
JD wrote:
Legal advice on the Station?
No JD, on the de-limit.
Considering there has never been a succesful appeal against a council changing its policy from restriction to de-restriction I'm very surprised that the T&G are considering something which they have in the past had experiance of being on the wrong end of a judgement. Just for their benefit they might wish to read the following.
IN THE HIGH COURT OF JUSTICE IN THE QUEEN'S BENCH DIVISION ( THE CROWN OFFICE
LIST)
NO. CO/2874/99
Royal Courts of Justice
Strand
London WC2
Wednesday 19th January, 2000
B e f o r e: MR JUSTICE LIGHTMAN
REGINA
v.
COUNCIL OF THE CITY AND DISTRICT OF ST ALBANS EX PARTE ST ALBANS & DISTRICT TAXI ASSOCIATION
MR D MCPHERSON ( instructed by MICHAEL DEVIDECKI, LONDON W9 2BA) appeared on behalf of the Applicant. MR K LEIGH ( instructed by ST ALBANS COUNCIL ENVIRONMENTAL DEPARTMENT, ST ALBANS, HERTS. AL1 3JE) appeared on behalf of the Respondent.
J U D G M E N T
MR JUSTICE LIGHTMAN: On 15th July 1999 the applicants applied for judicial review challenging the decision of the respondent council reached on 14th. The decision of 14th July was as follows: (1) that the Council resolved to end restrictions on the number of hackney carriage licences with immediate respect, (2) that new licences would only be issued in respect of vehicles which met the Councils standard conditions and were wheelchair accessible, and (3) that the sum of 8,200 which would no longer be required for a survey of demand should be reallocated for pavement repairs.
Before 1995 the Council imposed no limitation on the number of licences which it granted. A limitation was first imposed in 1995 and the number is now 127. The effect of this limitation is to create a monopoly in the existing licensees. As a result, (1), there is great value attaching to a licence: I am told that a licence is now saleable at
The decision is adverse to the interest of the existing licensees and they are the applicants on this application. They are concerned to safeguard themselves from the financial consequences of the decision. It is common ground that the Council has power to make the decision which it made, but it is also common ground that it could only make that decision if it followed lawful procedures. The question raised on this application is whether it has done so.
The concern on the part of the Council about the sufficiency of cabs able to provide wheelchair access and to cater for the disabled has existed for some time. The applicants disagree that cause exists for this concern. They challenge that any concern need be met by the grant of fresh licences.
On 16th June 1999 the Highways and the Works Committee of the Council resolved to grant five new licences for wheelchair accessible taxis, and to commission a survey about unmet demand for taxis in the area. It also decided to refuse a further increase for fares requested by the existing licensees for the millennium eve. On the 18th June the licensees association published a press release protesting about both decisions and in response to the latter decision announced that its members would not operate on the millennium eve. This threat, effectively of a strike on that date, posed a challenge to the Council and that would appear to have triggered the action subsequently taken by it.
On 23rd June 1999 the Policy and Resources Committee of the Council resolved to recommend to the full Council the total removal of all restrictions on the number of licences. On 25th June the Council invited the existing licensees to make representations to the Council on this issue by 6th July. In response to this invitation the licensees submitted a petition, a number of letters of protest against the proposal explaining the serious consequences of this decision upon the existing licences and a full and detailed letter from their solicitor dealing with the various arguments on the issue. I shall refer to that letter again later. It is sufficient to say that, though the petition itself spoke of a lack of due process of consultation, there was no complaint in the letter or otherwise about the time limit and no request for further time.
On 13th July the Council meeting took place and at the request of the licensees a representative of the existing licensees spoke for three minutes; he did not request any longer time for this purpose. The Council also admitted, for the purposes of its deliberations, a petition of persons supporting the removal of restrictions. The decision thereupon was made on 14th July as I have said.
On 15th July the applicants obtained an injunction restraining the Council from implementing the decision and on 16th July leave was granted to challenge the decision in judicial review proceedings and the injunction was continued effectively until trial. It was originally expected that the full hearing would take place in or before December, but because of pressure of work in the Crown Office List the full hearing had to be postponed until some date in March. This delay impelled the Council to make an application, which was due to be heard today, to discharge the injunction. This application was listed to take half a day. On reading the papers yesterday it became clear to me that, before I could deal with the application to discharge the injunction, it would be necessary to investigate (at least to some extent) the merits of the matter and that in view of what appeared to me to be the clear waste of money and time of having half a day spent on dealing with the application today and a day spent on a full hearing in March, the appropriate course was to proceed with the full hearing today. Counsel were so informed yesterday.
When the matter came on for hearing this morning counsel for the applicants sought an adjournment. He indicated that he was concerned that he may not have had sufficient time properly to prepare for a full hearing. I was not able to treat that complaint seriously. He had acted throughout these proceedings on behalf of the applicants. He had been given notice of my intention yesterday and it seemed to me that there was nothing of any such complication in this case which prevented any competent counsel in those circumstances conducting the full hearing. It is clear that indeed there was no basis for the application for the adjournment, for I have received from counsel for the applicants a very full and clear presentation of his case. I made it clear to him that if in the course of his presentation he required any adjournment or any additional time he could have it, and I hope and confidently believe that he had every opportunity to make his full case.
I turn now to the three issues raised by the applicants as a basis of their challenge to the lawfulness of the decisionmaking process.
1. STANDING ORDERS.
The first relates to the compliance with standing orders of the Council. This issue, he concedes, is a makeweight, but it raises matters which (he says) may be taken into account when considering the other and more substantial challenges. The first allegation of noncompliance relates to Standing Order 11. Standing Order 11 provides:
Where a petition is lodged with the Chief Executive not less than 14 days before the date of an ordinary Council Meeting ... the Chief Executive shall report to the Council Meeting at which the petition is presented, and one signatory from amongst those qualified [to present the petition] shall be permitted to address the Council Meeting at which the petition was presented for up to three minutes ...
It is clear that neither of the petitions in this case complied with the 14 day time limit. The suggestion made by the applicants is that, because of the failure to comply with the time limit, it was improper for the petition of those supporting the removal of restrictions to be presented to the Council meeting. There is an immediate common sense problem in that submission because plainly the sensible and proper course was that the Council in making any such decision should have before it all relevant material and that must include any such petition. But the legal answer to this complaint is simply this: Standing Order 11 imposes upon the chief executive an obligation to report the petition to the Council if it is presented more than 14 days before the date of the Council meeting. It throws no light at all on the situation where it is not presented 14 days before.
In any such situation it must be a matter of judgement for the Council and its officers as to how far any consideration should be given to it and it seems me it is entirely proper, and indeed it must have been the only proper course, for the Council in this case to have considered both petitions at its meeting. I can see no question of any failure to comply with standing orders in regard to the matter of the petitions.
The second allegation is that the proposal to remove the restrictions was referred to the Council by the Policy and Resources Committee and not by the Highways Committee. It may well be right that questions of deregulation of hackney carriages was an appropriate matter falling within the ambit of the Highways Committee rather than the Policy and Resources Committee, but I do not think this matters at all, for it is clear, and indeed there is no dispute, that the Council was plainly competent to proceed and consider the matter whatever the source of the reference to it. Therefore it seems to me that the standing orders do not advance the applicants case.
2. PROPORTIONALITY
The second complaint relates to whether the decision was proportionate. Where the goal sought to be achieved can be achieved at less cost to third parties than that which is proposed to be adopted, the doctrine of proportionality generally requires the goal to be achieved in the way which occasions the lesser cost to third parties. The critical question when applying that principle in this case is to decide what was the goal that was sought to be achieved here. If the goal was limited to increasing the number of wheelchairaccessible taxis, then it may have been disproportionate to abolish all restrictions.
If the goal was to punish the association of licensees for their threat of strike action, then it would be open to objection on any basis. This would not be the case if the goal was to remove vulnerability to such a threat in the future. But I am satisfied that the goal behind the council resolution was to restore the situation which had prevailed prior to 1995 and to establish an open market. The Councils decision embraced three further considerations were the consequences of establishing on open market, namely (1) there would be no risk in the future of further threats of strike action; (2) there would be, or there would be likely to be, more wheelchairaccessible taxis; and (3) there would be a saving of the costs of triennial surveys as to the demand for taxis in the future. But the overall decision and the overall goal aimed to be achieved was indeed one of abolishing all restrictions on numbers immediately, and if that was the goal then the question of proportionality does not arise.
The Council was entitled to adopt this as its goal and, having adopted this course as its goal, no question arises of considering whether the consequences on the existing licensees render the decision of itself, on grounds of proportionality, invalid. Of course the effect on the existing licensees was a relevant question for the Council to take into account and this brings me on to the third challenge.
3. TIMING FOR CONSULTATION PURPOSES
The third challenge is that there was no proper time for consultation and that the full relevant materials were not sought and considered by the Council. It is right to say, dealing with the question of the proper time, that there was no question of any urgency in this case which enabled or entitled the Council to abridge what was a sufficient time or proper consideration of whatever it was they ought to have considered.
Now turning first to the question of the time limit the letters inviting representations were sent out on Friday 25th June and were presumably received on the 26th June, that is the Saturday, although some may not have been received until the following Monday. There was a requirement to answer by 6th July. It is difficult to see why the Council should have refused to accept and take into account replies received at any time prior to 14th July and, if a request had been made to the Council to take into account such later answers, I have little doubt that it would have done so. But it is right to say that no such request was made. No application was made to the Council to extend the time. Within that time limit substantial representations were made, as well as the presentation of the petition and these representations detailed the serious consequences for the existing licence holders of the proposed decision. The most important document in this regard is the licensees solicitors letter dated 5th July. After dealing with a number of substantial matters of importance for determination, this letter concludes as follows:
We have not commented on the affect of deregulation [sic] on the livelihood of hackney carriage drivers by your council as we think the petition already presented to the council speaks for itself in this regard.
Please will you include a copy of the letter of the Officers report to the meeting of the full Council on 14 July. What is clear from this letter is that the applicants and their solicitor were perfectly satisfied that the full material relating to the deregulation and the effect on the livelihood of the applicants was already presented to the Council and it was inviting the Council to proceed with its decision on 14th July on that material.
In my view, as a matter of fact, a sufficient time was given for making representations, but, if I had any doubts, this letter was a clear representation by the applicants that there was indeed sufficient time and that that the Council should proceed as it did. It therefore seems to me that any suggestion that the Council failed sufficiently to take into account representations or failed to give sufficient time to the applicants to make representations and put material before them, whether regarding the effect of the decision on the livelihood of the existing licence holders or otherwise, appears to me to lack any substance.
It has been further suggested that the Council could or should have gone further. The applicants first suggested that the Council should have obtained a full survey on the issue as to unsatisfied demand for hackney carriages in the area. But of course if the policy decision was being adopted to abolish all restrictions on numbers, there was no relevance in any such survey, and there was absolutely no need for the Council to proceed in that way. It is to be noted that there was no suggestion in the solicitors letter that it should do so.
Secondly, it has been suggested that the Council should have conducted a survey or obtained expert advice regarding the financial impact on the existing licensees. As a matter of principle there was no obligation to do so. There was ample material available to the Council for this purpose. In any event their solicitor himself said there was sufficient material before the Council for making its determination. I do not see how there can be any question of any lack of sufficient material before the Council or there was any failure of duty on the part of the Council to obtain any further material.
There are two further matters I should mention. First of all reference has been made to a statement purporting to record a conversation between Counsellor Blackwell and the solicitor acting for the applicants regarding the rush in the procedure followed by the Council. Councillor Blackwell however made it clear in a subsequent letter to the Councils solicitors that he was not suggesting that there was any impropriety. It seems to me highly material to this case that, in deciding whether the Council was fully informed when it made its decision, it heard a full and clear speech by Counsellor Blackwell effectively presenting the case on behalf of the existing licensees. In those circumstances it is difficult to say that their case was not fully and fairly presented and considered by the Council when it made its decision.
The other matter I should refer to is the matter of obvious hardship which this decision of the Council may occasion to existing licensees and, in particular, those who have mortgaged their assets and their future to pay for licences. I regret to say that the purchase of such licences at premiums was at all times a risky investment. There was never any assurance given by the Council (if any assurances could lawfully be given) that the value of the licences would not be diluted by the opportunities given to further individuals to obtain licences by an increase in licences available and granted.
The only protection to which existing licensees were entitled was the opportunity to make representations to the Council before any decision was made to change the basis on which licences were granted and that full opportunity has, as I have held, been given in this case.
The sad fact is that some of the existing licensees may have proceeded with their purchases on the basis that the monopoly which determined the value of their licences would continue for the foreseeable future. I regret to say that they had no legitimate expectation to this effect and the value of the licences they purchased was at all times at risk of dilution if the Council took such action as it has done. In those circumstances, notwithstanding the full and careful submissions made by counsel on behalf of the applicants, I refuse this application.
MR MCPHERSON: earnings and of the value and the effect of the loss in value. My Lord, that could not be prepared either by representations, that refers to the timing, or by the Council, which refers to the proper material before the Council, within the time available. So, my Lord, the lack of representation, being six days to make a representation about a loss in value of 2,500,000 and in relation to the materials before the Council, the lack of those materials before the Council, it all bases itself, my Lord, on the interpretation that I put on the letter, as opposed to your Lordships.
MR JUSTICE LIGHTMAN: I refuse permission to appeal clearly on three grounds. First of all the letter, as it seems to me, speaks for itself; secondly, as set out in the judgment the fact that six days was sufficient time is reinforced by the fact that there was never any request for further time; and thirdly, as set out in the judgment, in my view, it is absolutely clear that the Council was acting perfectly rationally in deciding to proceed on the material then before them. You can go to The Court of Appeal and ask them for pleasure. Thank you all for your help.
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