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Neutral Citation Number: [2004] EWHC 2836 (Admin)
Case No: CO/4746/2004
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 07/12/2004
Before :
THE HONOURABLE MR JUSTICE WILKIE
Between :
DARLINGTON BOROUGH COUNCIL
- and MALCOLM
KAYE
Claimant
Defendant
Sam Grodzinski (instructed by Darlington Borough Council) for the Appellant
Jill Brown (instructed by Rowley Ashworth) for the Respondent
Hearing dates: 29 November 2004
Judgment
Mr Justice Wilkie:
1. This is an appeal by way of case stated from a decision made on 13 July 2004 by the
Justices for the County of Durham. The Justices upheld the appeal by Mr Kaye
against the refusal of the appellant council to renew his licence as a driver of a
hackney carriage.
Factual background
2. The respondent has worked as a hackney carriage driver in Darlington since 1970.
He has held a full driving licence for 35 years. He has never been the subject of a
complaint from a passenger. In that 35 years of driving he has received one three
point penalty on his licence arising from a speeding conviction dated 9 March 2002.
3. Each year the respondent is required to renew his licence to drive a hackney carriage.
Prior to 2002 in order to do so he was required to complete an application form with
details of his name and a ddress, date of birth, and previous hackney carriage licence
particulars. He was also required to submit a criminal record check signed by a
solicitor and a medical certificate which had to be renewed every three years.
4. On a date in September 2002, th e precise date being unclear, the appellant passed the
following resolution:
a) That the council’s current policy be amended to introduce the Driving Standards
Agency taxi test as a pre requirement of any grant of hackney carriage and private
hire driver licences for those drivers who have driven hackney carriages or private
hire vehicles for less than six months together with experienced drivers who have
allowed a licence to lapse, the proposed start date for this group of drivers being 4
November 2002.
b) The council’s current policy be amended to introduce the Driving Standards Agency
taxi test as a requirement for the renewal of all hackney carriage and private hire
licences for those drivers whose medical and/or police check are due, the proposed
start date for this group of drivers being 1 st April 2003.
c) That drivers be asked to pass the Driving Standard Agency test on one occasion
only.
d) That the use of the Driver Improvement Scheme be approved as a disciplinary tool
that may be used by the licens ing committee as an alternative to suspension for
drivers with nine or more penalty points or a history of poor driving, the proposed
start date being the November 2002 licensing committee and that the Director of
Development and Environment make the neces sary arrangements to establish a
referral system for taxi drivers to the Durham, or alternatively the Cleveland,
national driver improvement scheme as outline in paragraph 30 of the submitted
report.
The reasons annexed to the minute recording these dec isions read as follows:
a) To raise the standard of driving skills for the benefit of all road users.
b) To provide reassurance to the public and the fare paying passengers that all drivers
have achieved the necessary minimum professional standard of dr iving skill.
5. Before taking this decision the council conducted a public consultation exercise
seeking the views of a representative sample both of the general public and of those in
the trade. The outcome of that was a decisive majority of members of th e general
public in favour of such a change and an equally decisive majority of those in the
trade opposed to such a change. The council had before it a report from the Director
of Development and Environment which included the following paragraph: “
The DSA have advised officers that there are currently twenty five local
authorities using the DSA driver test and they are testing six hundred drivers
per month. The pass rate average nationally is 48% (with a wide variation in
pass rates in different area s – between 38% and 86%). This difference
appears due to the preparation made by drivers. Licensing Officers in Leeds
have advised that some of their private hire operators are employing advanced
driving instructors to improve driver’s skills in advanc e of the test and this has
had the benefit of also reducing accident rates.”
6. The magistrates had in evidence before them a document entitled “The Driving
Standards Agency taxi driver test progress report”. That showed the results of the
taxi driver test from November 2002 through to March 2004. The figures showed,
for each quarter, a pass rate ranging from 41% to 59%. This report updated the
information which had been presented to the council. In particular it records that in
2003 to 2004 there were forty five local authorities using the DSA driver test and
seven thousand drivers were tested with a pass rate of 50%. It goes on to say the
DSA have indicated that the pass rate for taxi drivers could be significantly improved
by drivers better prepari ng for the test. The council established in March 2003 a free
driver assessment scheme with funding from the local transport plan. The written
assessments are carried out by qualified advance driving instructors based in
Darlington who have been place d on an approval list. Ninety seven of the one
hundred and seventy seven vouchers issued in the twelve month period up to 1 April
2004 had been redeemed. The local pass rate is the same as the national average.
The report sets out in summary form ob jections to the DSA test. It says as follows:
“The policy requiring all drivers to prove competence of driving skills by
means of a DSA driver pass certificate continues to be viewed by many
applicants to be an unnecessary and unreasonable burden. It is claimed that
many drivers are leaving the trade rather than take the test. Private hire
operators also claim that due to a general shortage of drivers they are unable
to run the number of vehicles needed by customers particularly late at night.”
7. That report also includes a section concerning issues associated with the
implementation of the DSA test. It says as follows:
“Officers implementing the policy routinely refused to renew driver licences
where the applicant is unable to provide a DSA pass cer tificate. An existing
driver, in such a position applying for a renewal, may formally appeal against
the decision to the magistrates’ court and the council is obliged to issue a
licence until the appeal is heard. Most drivers following their appeal
procedure have obtained a pass certificate and then withdrawn their appeal.
One driver, Malcolm Kaye, declared that he will not take the test, and licence
renewal was refused is, with the support of his trade union, challenging the
council policy by formall y appealing to the courts.”
8. The council, after an initial wrinkle, treated Mr Kaye’s application to renew his
licence from 18 November 2003 as one which fell within the requirement that,
pursuant to paragraph (b) of the resolution, in order to be granted n eeded to be
supported by the production of a DSA pass certificate. Mr Kaye did not produce
such a pass certificate, as he had decided not to take the test. Accordingly on 14
November 2003 the council wrote to Mr Kaye as follows: “
As properly authorise d officer of the council I have decided to refuse your
application for grant of a hackney carriage driver licence and the reason is:
You have failed to meet the council’s requirement that you provide a DSA
taxi driver pass certificate with your application for grant of a hackney
carriage driver licen ce.
Section 51 of the Local Government (Miscellaneous Provisions) Act 1976
states that a District Council shall not grant a licen ce unless they are satisfied
that the applicant is a fit and proper person to h old a driver’s licen ce. Section
57 further states that a District Council may require any application for a
licence under the Act of 1847 or under this part of this Act to submit to them
such information as they may reasonably consider necessary to enabl e them to
determine whether the licence should be granted and whether conditions
should be attached to any such licence. The DSA pass certificate is part of
the information that Darlington Borough Council requires to make a grant.”
The letter went on to inform Mr Kaye of his right to appeal to the Magistrates’
Court. It also included a special note as follows:
“The council reviewed its licensing policy in September 2002 introducing the
requirement for any applicant to provide a DSA taxi driver pass cer tificate to
raise the standard driving skills for the benefit of all road users and to provide
reassurance to the public and the fare paying passengers that all drivers have
achieved the necessary minimum professional standard of driving skill.”
The decision of the Magistrates’ Court
9. The magistrates, as requested, have stated a case for the purposes of this appeal. The
magistrates begin by setting out a statement of the facts which is similar to that which
I have already set out and which was not in dispu te. It set out the respective
contentions of the appellant and respondent. The case for the appellant was that the
requirement to supply a DSA pass certificate was a request for information which
they reasonably considered necessary to enable them to d etermine whether the
applicant was a fit and proper person to hold a hackney carriage driver’s licence. The
respondent’s submission was that the requirement for a DSA pass certificate was
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more than a request for information rather it was a condition atta ched to the grant of
the licence. The respondent relied on the authority of the case of Wathan v Neath
and Port Talbot County Borough Council [2002] EWHC 1634(Admin) as authority
for the proposition that a licensing authority is not permitted to attach c onditions to
the grant of a hackney carriage driver’s licence. The requirement that the applicant
undertake a stringent test of his ability to drive amounted to more than a request for
information, it amounted to a condition.
10. The magistrates formed th e opinion that the requirement upon the respondent to
supply a DSA pass certificate went further than a mere request for information and
was in fact a condition upon the grant of hackney carriage driver’s licence. Their
conclusion was that the requiremen t for a DSA pass certificate was unlawful and the
evidence they had heard convinced them that the respondent was a fit and proper
person to hold a licence. Accordingly they upheld the complaint.
11. The magistrates formulated two questions for the opinion of the High Court. I set
them out in reverse order to that in which they appear in the case stated as it appears
to be more logical to do so. They were as follows:
a) Was the requirement to pass the DSA driving test a request for information as
envisaged by section 57 Local Government (Miscellaneous Provisions) Act 1976 or
did it amount to a condition to the grant of a licence which must be fulfilled before
the Borough Council would consider whether or not to grant a hackney carriage
driver’s licence?
b) Was the information as to whether an applicant or a hackney carriage driver’s
licence had passed the DSA driving test reasonably required and necessary to
establish whether the respondent was a fit and proper person to hold a licence
under section 5 9 Local Government (Miscellaneous Provisions) Act 1976?
The statutory scheme
12. The power to licence hackney carriages is conferred on Commissioners pursuant to
section 37 of the Town Police Clauses Act 1847. By section 2 of that Act the
Commissioners are d efined and it is common ground that the licensing committee of
the District Council constitutes the Commissioners for the relevant area.
13. The Commissioners have powers to make bye laws for a number of purposes
including regulating the conduct of the proprie tors and drivers of hackney carriages
and such detailed matters as what badges they are required to wear, the hours in which
the may exercise their calling, the manner in which the number of each carriage shall
be displayed an so on. The Commissioners by means of bye laws regulate the
general conduct of the hackney carriage trade within their area. It is common ground
that there is no power for them to impose conditions on individual licences. In this
respect the powers of the Commissioners relating t o hackney carriages is different
from that of the same council when it deals with licences for private hire cars.
14. Section 59 of the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976
Act”) provides amongst other things as follows: (
1) Notwit hstanding anything in the Act of 1847, a District Council shall not
grant a licence to drive a hackney carriage – (a) unless they are satisfied that
the applicant is a fit and proper person to hold a driver’s licence; or (b) to any
person who has not for a t least 12 months been authorised to drive a motor
car, or is not at the date of the application for a driver’s licence so authorised.
(2) Any applicant aggrieved by the refusal of a District Council to grant a
driver’s licence on the ground that he is no t a fit and proper person to hold
such licence may appeal to a magistrates’ court.
A person is authorised to drive a motor car if he holds a standard licence granted under
part 3 of the Road Traffic Act 1988 not being a provisional licence. (Subsection 1B)
15. Section 61 of the 1976 Act provides amongst other things as follows: (
1) Notwithstanding anything in the Act of 1847 or in this part of this Act, a
District Council may suspend or revoke or…refuse to renew the licence of a
driver of a hackney carriage…o n any of the following grounds -(a) that he
has since the grant of the licence – (i) been convicted of an offence
involving dishonesty, indecency or violence; or (ii) been convicted of an
offence under or has failed to comply with the provisions of the Act of 1847
or of this part of this Act; or (b) any other reasonable cause….
(2) any driver aggrieved by a decision of a District Council under this section
may appeal to a magistrates’ court.
16. Section 57 of the 1976 Act provides amongst other things as fo llows
1) A District Council may require any applicant for a licence under the Act of
1847 or under this part of this Act to submit to them such information as they
may reasonably consider necessary to enable them to determine whether the
licence should be granted…
(2) Without prejudice to the generality of the foregoing sub -section – (a) a
District Council may require an applicant for a driver’s licence in respect of a
hackney carriage… -(i) to produce a certificate signed by a registered medical
practitioner to the effect that he is physically fit to be the driver of a hackney
carriage or a private hire vehicle; and (ii) whether or not such a certificate has
been produced, to submit to examination by a registered medical practitioner
selected by the District Council as to his physical fitness to be the driver of a
hackney carriage…
17. It is common ground that the power which the District Council has to refuse to renew
the licence of a driver of a hackney carriage, for amongst other things any reasonable
cause, is co-extensive with the obligation on a District Council not to grant a licence
to drive a hackney carriage unless they are satisfied that the applicant is a fit and
proper person or that the applicant has not been authorised to drive a motor car for at
least 12 months or at the date of the application is not so authorised.
18. It follows, therefore, that the decision which the District Council had to take
concerning the respondent, given that he was a person, who for at least 12 months had
been authorised to drive a motor car and at the date of his application was so
authorised, was whether they were satisfied that he was a fit and proper person to hold
a driver’s licence. Unless they were so satisfied the District Council did not have the
power to renew his licence.
19. It was accepted in the course of the argument by Miss Brown acting for the
respondent that the District Council was entitled in that exercise to have regard to
evidence casting doubt on the applicant’s fitness by reference to his compet ence or
conduct as a driver. That this was so must follow from the fact that, pursuant to
section 61, the Council had powers of suspension or revocation during the currency of
a licence and that it was commonplace for those powers to be exercised by reas on of a
driver having driving convictions the sanction for which stopped short of
disqualification from driving. Furthermore it would follow that it would be lawful
for the District Council to require any applicant for renewal of a licence to require tha t
person to submit such information as they may reasonably consider necessary to
enable them to determine whether the licence should be renewed. That information
would plainly include information concerning driving convictions.
20. It is also not in dispu te that, pursuant to section 57, the District Council may require
an applicant to submit a medical certificate and/or to submit to examination by a
registered medical practitioner so that they might assess his physical fitness to be the
driver of a hackney carriage for the purposes of considering whether the applicant was
a fit and proper person to hold a licence.
21. The dispute between the parties amounts to this: the respondent contends that,
provided the applicant for a licence satisfied the basic qualifi cation of holding a
driver’s licence for 12 months he is not required to meet any further more stringent
standard by reference to any different examination.
The appellant on the other hand argues that the District Council is entitled to have a
policy that in considering whether a person is a fit and proper person to hold a licence
they should have satisfied a standard of driving set by the DSA and that it is therefore
necessary for them to require that an applicant provide information whether he has
satisfied that test requirement. Mr Grodzinski for the appellant has indicated, upon
instructions, that this is a policy but that the District Council is prepared to listen to any
argument as to why the policy should not apply in a particular case. For examp le it
might be argued that an applicant has very recently passed an equivalent test, though
not one examined by the DSA. Miss Brown on the other hand has conceded that her
submission would be the same even if the appellant’s position were stated in terms t hat
it would, as a matter of policy, generally require such a test to have been passed but
would be prepared to examine an individual case on its merits on grounds such as have
been indicated by Mr Grodzinski. Accordingly, this is not a case where the part ies are
in conflict over whether the position of the appellant is one which is unlawful by reason
of having fettered their discretion, or having delegated a potentially decisive element to
the exercise of their power to decide whether an applicant is a fit and proper person to a
third party namely the DSA. The dispute is more fundamental than that. The respondent
says that, whilst matters of individual conduct or competence evidenced by driving
convictions may be taken into account in determining whether a person is a fit and
proper person to hold a licence, what the appellant cannot lawfully do is to require as a
condition precedent to the grant of a licence that the applicant has passed a more
stringent driving examination than that which he has passed in order to satisfy section
59 1 B of the 1976 Act.
22. The respondent relies on Wathan v Neath and Port Talbot County Borough Council
already referred to. It is common ground that this is authority for the proposition that
a licensing authority cannot impose a condition upon the grant of a licence. That case
concerned the imposition of a condition subsequent to the grant of a licence. In my
judgment it applies equally to any requirement that an applicant satisfy a condition
precedent. The sole question for the District Council is whether it is satisfied that the
applicant is a fit and proper person.
23. In my judgment the District Council, in deciding whether it is satisfied that an
applicant is a fit and proper person, is entitled to have regard to the applicant’ s
standard of driving. It is not to be artificially limited to considering evidence about
that standard which happens to have arisen because of criminal convictions. Nor is it
precluded from having any regard to an applicant’s standard of driving merel y
because he has held a driver’s licence for 12 months. It is a matter for the District
Council to set the standard of what will amount to a fit and proper person by reference
to, amongst other things, the applicant’s standard of driving provided in so d oing they
taken into account all relevant matters and leave out of account irrelevant matters and
come to a decision to which a reasonable licensing body could come. Furthermore it
is entitled to have a policy which it applies in the generality of cases provided it is
prepared to be “willing to listen to anyone with something new to say” (see Lord Reid
in British Oxygen Company versus Board of Trade (1971) AC 610, 625D ).
24. It follows, in my judgment, that the appellant was entitled, after due consideratio n and
proper consultation, which plainly took place, to adopt a policy that it would not
regard a person as a fit and proper person to have a licence who had not first passed
the specific DSA taxi driver test. It further follows that, given that policy, it was
entitled to consider that it was reasonably necessary for it, in order to form a view
whether a person was a fit and proper person to have a licence, to require information
from an applicant whether he or she had passed that test.
25. Thus, addressing the questions posed by the magistrates in their case stated, in my
judgment the requirement to pass the DSA driving test was not a condition attached to
the grant of a licence which must be fulfilled before the Borough Council would
consider whether or not to grant a hackney carriage driver’s licence. Rather, it was a
policy which the District Council applied when considering whether an applicant was
a fit and proper person to whom to grant or renew a licence. Given that policy, the
District Council was reasonably entitled to consider it necessary that it should receive
information whether the applicant had or had not passed the DSA driving test.
Accordingly, the requirement that the applicant should so inform the District Council
was a requirement for information within section 57 of the 1976 Act.
26. It therefore follows that, in my judgment, the magistrates misdirected themselves in
concluding that the requirement for that information was outwith the terms of the
statute.
27. A supplementary argument appe ared at one stage to be advanced by the respondent.
This was to the effect that, as the hearing before the magistrates was a rehearing rather
than a by way of a judicial review of the decision of the District Council, then the
magistrates were capable of reaching a De Novo decision whether the respondent was
a fit and proper person to hold a licence disregarding the policy of the District
Council. It is apparent that this is what the magistrates did in upholding the
respondent’s appeal.
28. It has become apparent, however, by reason of the citation by the respondent of the
case of Sagnata Investments Ltd versus Norwich Corporation (1971) 2QB 614 and by
the appellant of the Queen on the application of Westminster City Council and
Middlesex Crown Court and Chorion plc and Fred Proud 92002) EWHC 1104
(Admin) that it is common ground that where magistrates consider an appeal by way
of rehearing against a decision of a local authority, which has a policy, that they ought
to have regard to the fact that the loca l authority has a policy and should not lightly
reverse the local authority’s decision or, to put it another way, the magistrates must
accept the policy and apply it as if it was standing in the shoes of the council
considering the application. It is, of course, obvious that such an approach is
predicated on the lawfulness of the policy. Given that this is the undisputed position
as a matter of law, it is apparent that the magistrates, though rightly considering the
respondent’s appeal as a rehearing, e rred in failing to have regard to the District
Council’s policy in considering whether the respondent was a fit and proper person to
hold a licence.
29. It has been urged on me by the appellant that the position is sufficiently clear cut that
I should decide the question whether the respondent is a fit and proper person having
regard to the policy of the District Council and in the light of the facts that are
disclosed in this appeal. I am not persuaded that that would be the correct course. It
is clear that the magistrates heard a great deal of factual evidence and had regard to
that. This material is not before me. As I have indicated, the District Council has a
policy which it does not apply in an entirely fettered manner. In accordance with the
law it is always prepared to listen to what an individual applicant has to say. The fact
that at the moment it does not appear that there is anything much that this respondent
could say which would persuade the District Council, or the magistrates having
proper regard to that policy, to depart from that lawful policy in his case does not
mean that I should preclude his ability to persuade the magistrates otherwise. There
may be matters of fact not before me which the respondent would be able to deploy
before the magistrates which would persuade them, notwithstanding the policy to
which they must have due regard, that nonetheless his appeal against the District
Council’s refusal of his licence should be upheld.
30. It therefore follows that the appeal must be allowed and the order of the Court is
that the matter be remitted to a fresh bench of magistrates for them to consider
the respondent’s appeal in accordance with the law.
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