England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		1st November 2005

Tuesday, 1st November 2005

1. MR JUSTICE LLOYD JONES: This is an appeal by Case Stated from a decision of the Crown Court sitting at Leeds, HHJ Norman Jones QC, Recorder of Leeds, sitting with magistrates, given on 7th March 2005. By that decision, the Crown Court allowed an appeal by Taxi Centre (Newcastle-upon-Tyne) Ltd against a decision of Leeds City Council's Licensing and Regulatory Panel, refusing to admit Taxi Centre's Fiat Doblo wheelchair accessible adapted motor vehicle onto the Council's approved list for use as a hackney carriage and refusing to license it for such use.
2. The statutory framework of the dispute between the parties is as follows. Section 37 of the Town Police Clauses Act 1847 empowers a district council to grant licences in its area for hackney carriages. Licence is granted to the vehicle and not to its owner. It is an offence under section 45 of that statute for a proprietor of a hackney carriage to permit it to be used as a hackney carriage without having obtained such a licence for the vehicle. The 1847 Act does not contain any specific requirements which a particular vehicle must meet in order to be so licensed. However, section 68 of the Act empowers a district council to make byelaws for various specified purposes relating to hackney carriages, which includes how such vehicles are to be furnished or provided. The byelaws currently in force in the area of Leeds City Council were made in 1975. Nothing in this case turns on those byelaws.
3. Section 47 of the Local Government Miscellaneous Provisions Act 1976 empowers a district council to attach such conditions to a hackney carriage licence as it considers necessary. Although this case is concerned with compliance with conditions, it is not concerned with compliance with conditions imposed on a licence under section 47 of the 1976 Act; it is rather concerned with conditions established by Leeds City Council in the sense of policy to be applied in relation to the licensing of hackney carriages.
4. Section 7 of the Public Health Acts Amendment Act 1907 provides that an appeal against a local authority's refusal to grant such a licence may be made at the Crown Court. Such an appeal is by way of rehearing of the application and is governed by section 48 of the Supreme Court Act 1981, to which I will return presently.

The present proceedings

5. In November 2002 Taxi Centre made an application to Leeds City Council for the Fiat Doblo to be placed on the approved list of hackney carriages maintained by Leeds City Council. On 22nd January 2004 that application had still not been decided and, accordingly, Taxi Centre appealed to the Crown Court against the City Council's nondetermination of application for a licence. That appeal was pending before the Crown Court when on 18th May 2004 the City Council took a decision to refuse the licence. By consent of both parties, the appeal to the Crown Court was then treated as an appeal against that decision. Following a lengthy hearing of some five days in the Crown Court, the Crown Court delivered a decision on two preliminary issues in favour of Taxi Centre on 7th March of 2,005. The matter was remitted by the Crown Court to the City Council, and its relevant panel, for the application to be reconsidered on the basis of the old conditions for licensing. There has been an appeal by way of Case Stated to this court against the preliminary ruling of the Crown Court and six questions have been drawn up for this court's opinion.

The preliminary issues

6. The Crown Court at the hearing, with the consent of the parties, identified two preliminary issues which it considered it was necessary to determine before continuing with the appeal. Those were (1) whether the Council had formally adopted the new conditions to attach to the approval of any vehicle by the date of consideration of the Fiat Doblo and, if so, (2) whether the Panel should have considered the application under the provisions of the new conditions which prevailed at the time of the Panel's deliberations or under the provisions of the previous conditions which prevailed at the date of the original application.
7. On the first issue, the Crown Court found that the new conditions took effect on 20th April 2004 and so they were adopted Council policy on 18th May 2004 when the appellant's application was considered and determined by the Council. On the second issue, the court found that the application should have been determined by the Council on the basis of the old conditions that prevailed from the date of the application until 20th April 2004. On that basis, the Crown Court allowed the appeal and remitted the case to the respondent's licensing and regulatory panel for the appellant's Fiat Doblo to be considered for approval under the old conditions.

The facts

8. The Crown Court made the following findings of fact:

(i) The application for the Fiat Doblo to be placed on the Respondent's approved list was submitted to the Council on 12th November 2002. The appellant's intention was to replace a Sharan vehicle, currently licenced, with the Doblo. The respondent's conditions then applicable were the predecessor to those adopted by the respondent on 20th April 2004.

(ii) The application went to one Mr Everatt from the Council for consideration.

(iii) On 10th December 2002, a note was sent to Mr Hind from a Mr Deplacido of the respondent setting out eight points to be considered by the appellant from the VLES inspection, namely an inspection by the Vehicle Licensing and Enforcement Section. That was a formal inspection. A vehicle could be presented and faults highlighted to an applicant for rectification before formal approval. At that stage, the Sharan was relicensed.

(iv) On 1st April 2003, Mr Everatt sent a faxed letter to the appellant setting out 11 issues that had been raised in discussions with Mr Airey, one of the appellant's employees. Some were minor modifications to the vehicle and others required certificates and documents to be presented. The fax concluded:

"This should then cover all the previous issues as discussed. If you can supply these documents I can complete my report and submit it for approval."

The court interpreted that as meaning that if those issues were addressed, as agreed, and the documents supplied, Mr Everatt's report would support the application for approval.

(v) By a further fax from Mr Everatt to the appellant on 12th April 2003, he was pushing for the supply of the documents, indicating that the matter could then be moved forward. On 16th April, Mr Hind replied in a letter in detail to each of the points raised. Documents were supplied to cover those required and the other points were addressed. On the assumption that this satisfied Mr Everatt, the Court noted that it may well be that approval would have been forthcoming.

(vi) At that stage, Mr Everatt fell ill. Mr Broster did not yet feel competent to deal with the matter. In about early June 2003, Mr Broster took on Mr Everatt's workload.

(vii) By 18th June, Mr Hind was writing to Mr Broster expressing himself in firm terms about the delay. Mr Broster had developed anxieties about safety and rear loading vehicles. He took a decision not to approve or license any further vehicle not already on the approved list until he had completed his investigation. That decision was taken by Mr Broster alone, without referring it to the Panel.

(viii) Although Mr Broster had the delegated power to determine any applications, it could be considered potentially questionable as to whether such delegated power extended to permit him to refuse to consider all applications for a substantial period. That would appear to have policy implications, which the Court believed should have been considered by the full Panel, especially where there were live applications in the pipeline. In effect, that decision meant that for months an impasse existed when no new style vehicle could be considered to be added to the approved list, yet all vehicles on that list could be licensed or relicensed, irrespective of whether they may fall foul of new safety proposals emanating from Mr Broster's review. Indeed, a decision to grant 130 new licences to vehicles on the approved list was deal with in late 2003 before STATUS had delivered its preliminary report on 11th January 2004.

(ix) Having consulted a wide range of interested and experienced groups, including taxi owners, trade associations, Manchester, Birmingham and Liverpool local authorities, and his own officers, Mr Broster decided in October 2003 to appoint STATUS. It would clearly take time for STATUS to report. By this time it would appear that his ban on approving any new vehicle to the list had been in place for about five or six months.

(x) On 27th November 2003, Mr Broster and Mr Hind met. Mr Hind was complaining that his application had been before the Council for over a year. Mr Broster indicated that he was not qualified to take the necessary decision, and that the application in due course would go to the full Panel. However, he was consulting with STATUS, and until that consultation process was complete he would not license the Doblo. Mr Hind indicated that he would now be taking legal action.

(xi) The appellant was left in an unenviable position. Having to all intents and purposes agreed with Mr Everatt the factors affecting the approval of the Doblo, it was suddenly stopped from advancing, not because of an adverse decision by the Council, but by the refusal of its principal officer to deal with the application, and it left them with no decision to appeal at law, and in a hiatus.

(xii) STATUS sent a draft of new proposed conditions to the respondent on 11th January 2004. A final draft was not sent until 13th March 2004. On 19th April, the appellant's solicitor wrote to Mr Broster complaining. The appellant received a copy of Mr Broster's report to the Panel. It would appear that a copy of the STATUS document had not been sent to the appellant and that it had only received the report to the Panel a few days before.

(xiii) The matter was brought to the Panel as a late item of business. Interested parties at that meeting would have had little time to consider the proposals, let alone take professional advice on the technical aspects since the documents were not sent to them before 8th April, and thereafter Easter intervened. It was unfortunate that such little time was given for consideration. A later submission to the Panel would have given that opportunity. There was to be a full Panel meeting on 25th May.

(xiv) The STATUS report took a neutral stance on the issue of rear loading vehicles versus side loaders. Further, a number of local authorities licensed rear loaders for use as hackney carriages and many of them had licensed the Fiat Doblo. Irrespective of the advice from STATUS, Mr Broster recommended to the Panel that rear loading vehicles should not be licensed. The Panel decided to defer consideration of the rear loading issue, but it adopted the rest of the recommended new conditions.

(xv) The effect of the new conditions was to render the Doblo as presented ineligible for approval.

(xvi) Consideration of the Doblo application was deferred by the Panel to its next meeting when it could be made available for inspection. There was a conflict over what was decided, Mr Hind believing that he was merely to demonstrate the Doblo to disabled groups on 18th May. The court was satisfied that he had not anticipated a full Panel inspection on that day although it may have been that he had misunderstood the final decision as minuted. At the inspection on 18th May 2004, the Doblo failed against the new conditions.

(xvii) On such facts, the Court found that the appellant had been kept waiting for a decision for 19 months and was then faced with the goalposts being firmly moved. The appellant was prejudiced by this delay.

(xviii) All vehicles that were continuing to be licensed under the old conditions as they were already on the approved list were considered to be safe. There had never been a significant safety incident under those conditions and the safety standards they promoted were considered by the Council to be adequate. The Court recalled that it had been told that no vehicle currently in production could comply with the Council's new conditions, although Mr Broster asserted that it may be possible for them to be rendered compliant by way of adaption.

9. On the basis of those findings of fact, the Crown Court found that:

(1) The appellant had a legitimate expectation at the time of its application which continued throughout the period of the application that the application would be considered with reasonable expedition and in accordance with the provisions which then prevailed.

(2) It was not a reasonable exercise of Mr Broster's powers to refuse to determine applications for new vehicles and, in particular, the appellant's Fiat Doblo to be placed onto the approved list pending the completion of the review conditions.

The law

10. The Crown Court stated the following principles of law as applicable to the case before it.

(1) It considered that its powers were contained in section 48 of the Supreme Court Act 1981, which empowers the Crown Court to confirm, reverse or vary any part of the decision appealed against, remit the matter with its opinion to the Council for redetermination, or make any such other order which the Council was entitled to make.

(2) The Council was empowered to grant licences in its area and to attach to such licences conditions as it considered reasonably necessary. That did not mean that the same conditions would necessarily apply to each vehicle.

(3) The respondent was entitled to retain to itself the right to continue the use of the old conditions for good reason, as it did for applications relating to vehicles that were already on the approved list.

(4) Hence, if there were reasonable grounds to consider for approval and licence a vehicle under the old conditions, the respondent had the right to do so.

(5) As the Court was in the position to exercise the powers possessed by the respondent, the Court would also be entitled to exercise that power to treat the Doblo under the old conditions if there were reasonable grounds for doing so.

11. Applying those principles to the facts as found, the Crown Court decided in relation to the second preliminary question:

(1) It was satisfied that the appellant had a reasonable expectation that its application would be dealt with with reasonable expedition and under the old conditions that prevailed throughout the period of its application until 20th April 2004.

(2) It was satisfied that to have done so would not have compromised safety.

(3) It was satisfied that the reasonable exercise of the Court's powers would have meant that applications would have continued to be dealt with in accordance with the established policy of the respondent until such policy was amended.

(4) In those circumstances, it was unreasonable not to so act.

12. On that basis, it remitted the matter to Leeds City Council for reconsideration on the basis of the old conditions. The following questions have been posed for the opinion of this court on the appeal by Case Stated.

(i) Whether the Crown Court erred in finding that the respondent, and therefore the Court, were entitled to determine the appellant's application on the basis of the old conditions, despite the Crown Court's finding that the new conditions took effect on 20th April 2004 and were thus adopted Council policy as of 18th May 2004.

(ii) Whether the Crown Court erred in finding that the appellant had a legitimate expectation when it submitted its application, which continued throughout the period of its application, that it would be determined with reasonable expedition and under the old conditions.

(iii) If not, whether the Crown Court exceeded its jurisdiction in allowing the appeal on the ground that the appellant had such a legitimate expectation. (iv) Whether the Crown Court erred in finding that it was potentially questionable that Mr Broster had the delegated authority to defer the determination of the appellant's application until the outcome of the review of the conditions by the Panel.

(v) Whether the Crown Court erred in finding that Mr Broster's exercise of that delegated power was not reasonable.

(vi) If not, whether the Crown Court erred and/or exceeded its jurisdiction in allowing the appeal on such a ground.

13. In my judgment, it is not necessary to answer all of the questions posed. Section 48 of the Supreme Court Act confers very wide powers on the Crown Court on an appeal of this sort. Section 48(1) provides:

"The Crown Court may, in the course of hearing any appeal, correct any error or mistake in the order or judgment incorporating the decision which is the subject of the appeal.

(2) On the termination of the hearing of an appeal, the Crown Court (a) may confirm reverse or vary any part of the decision appealed against, including a determination not to impose a separate penalty in respect of an offence, or (b) may remit the matter with its opinion thereon to the authority whose decision is appealed against, or (c) may make such other order in the matter as the Court thinks just and by such order exercise any power which the said authority might have exercised."

14. I would draw particular attention to section 48(2(c), the power of the Court to make such order as it considers just and by such order to exercise any such power which the authority might have exercised.
15. Turning to question 1, Miss Stockley on behalf of Leeds City Council advanced an argument that the effect of the adoption of the new conditions was that the authority did not have the power to decide the application on the old conditions. She accepted that the Crown Court hearing was a rehearing of the case on the merits. So the question was what power the authority itself had in order to depart from its new policy. Those new conditions had been adopted by the Council on 20th April 2004 and were intended to apply to all vehicles not already on the Council's approved list. Miss Stockley contended that that policy, although not set in stone, was highly material and had to be taken into account in deciding any such application. She accepted that it was open to the authority to depart from that policy in certain respects in an appropriate case. She acknowledged that failure to comply with every condition would not necessarily result in a refusal. Nevertheless, she maintained that it was imperative that any application was judged against the adopted policy. In her submission, it was not open to the Council to depart entirely from the new conditions. She said that to say that the new conditions did not apply at all would be a failure to have regard to the new adopted policy. These new conditions, she said, had come about after extensive research, expert advice and wide consultation and after the specific panel had specifically resolved to apply these new principles to vehicles not already on the approved list. She maintained that the Council would not be entitled to disregard those conditions on any application made on or after 20th April 2004 or, indeed, on any application considered on or after 20th April 2004. If it did so, it would fail to take into account its own relevant policy. On that basis, she maintained that it was equally unlawful for the Crown Court to find that the application should have been founded under the old conditions.
16. I am unable to accept this argument. We are here concerned with the exercise of a discretionary power. A public authority cannot lawfully fetter itself so as to follow blindly an adopted policy. It must maintain at least the possibility of departure from an adopted policy in an appropriate case and it must keep an open mind as to whether it should depart from the accepted policy in any given case. Whether and, if so, the extent to which an authority may depart from its adopted policy will, in the first instance, be a matter for the authority concerned, but its decision to depart must, of course, be lawful when tested against the well-established criteria of public law.
17. In the context of the present case, to disapply the new conditions and to apply the old conditions would, in my judgment, not necessarily, contrary to Miss Stockley's submissions, amount to a failure to have regard to an adopted policy. On the contrary, the authority would have to give full consideration to the policy and to the factors which were said to justify or to require a departure from that policy. In my judgment, there are situations in which the authority could depart from the new conditions and apply the old ones without falling into illegality by failing to have proper regard to its new policy. I consider this case to be such a case.
18. In this regard I would draw attention briefly to the following matters. First, there was in this case no suggestion that vehicles which conformed with the old conditions were in any way unsafe or placed the public at risk. On the contrary, the Council considered that vehicles which were licensed under the old conditions were safe. Secondly, as the Crown Court observed, the Council was entitled to retain to itself the right to continue to use the old conditions for good reason. Indeed, the Council did that and exercised that right so as to permit applications relating to vehicles on the approved list to be licensed or relicensed under the old provisions. Thirdly, the resolution of 18th May 2004, refusing a licence in this case, records the Council's acknowledgment of the possibility of departing from the new conditions. In my judgment, the Council was right to recognise that possibility. Fourthly, as Mr Broster accepted in his evidence in the Crown Court proceedings and as the Crown Court found, no vehicle as manufactured could meet the requirements of the new conditions. It would only be modified vehicles which would be able to meet the requirements of the new conditions.
19. It is clear to me that if there were found to be reasonable grounds to consider for approval and to licence a vehicle under the old conditions, then the authority had the right to do so. Accordingly, I consider that by virtue of section 48(2)(c) of the Supreme Court Act 1981 the Crown Court would have the same right when hearing an appeal. I come to the conclusion that in the circumstances of this case there were reasonable grounds. In any event, that is the conclusion to which the Crown Court, in my judgment, has come.
20. Accordingly, in my judgment, question 1 should be answered as follows. The Crown Court did not err in finding that the respondent, and therefore the Court, were entitled to determine the appellant's application on the basis of the old conditions, despite the Crown Court's finding that the new conditions took effect on 20th April 2004 and were thus adopted Council policy as of 18th May 2004.
21. Once question 1 is answered in that way, in my judgment it becomes unnecessary to answer the other questions. The Crown Court had an extremely wide discretion in deciding the appeal which was by way of a rehearing. Just as it would have been open to the Council to depart from the new policy for good reason, it was open to the Crown Court to do so. The Crown Court concluded that there was good reason to do so. In my judgment, it was entitled to come to that conclusion. Indeed, in my judgment, there were compelling reasons supporting that conclusion. It may be that the decision to take the two points as a preliminary issue, obviously a sensible, practical course, has focused attention unnecessarily on questions of vires and public law concepts, in particular legitimate expectation, Wednesbury unreasonableness and the question of the authority of Mr Broster. In my view, it was not necessary for the Crown Court to find, as a precondition of its decision, that there was a breach of a legitimate expectation, or Wednesbury unreasonableness or an excess of authority on the part of Mr Broster. As Mr Offer put it in the course of his submissions, there does not have to be a ground for judicial review, simply a good reason for departing from policy.
22. The matter can be tested in this way. Assume that the Crown Court had concluded that there was no legitimate expectation, that there was no Wednesbury unreasonableness, and there was no excess of authority on the part of Mr Broster. It would, in my judgment, still have been open to the Crown Court to arrive at the conclusion it did as the fair and just result to reach in all the circumstances. In my judgment, it is abundantly clear that it would have done so. Indeed, this is what it, in fact, did, and, in my judgment, it was entitled to do so. In this regard, I would draw attention to certain conclusions expressed by the Crown Court and for this purpose I shall refer to the Case Stated rather than to the judgment.
23. The Crown Court found that the faxed letter sent from Mr Everatt of the City Council to Mr Hind of the appellant on 1st April 2003 meant that if the specific issues identified were addressed, as agreed in the documents supplied, Mr Everatt's report would support the application for approval. Again, the Crown Court considered that although Mr Broster had the delegated power to determine any applications, it could, as it put it, be considered potentially questionable as to whether such delegated power extended to permit him to refuse to consider all applications for a substantial period and that would appear to have policy implications, they said, which that Court believed should have been considered by the full panel, especially when there were live applications in the pipeline. They expressed the view that, in effect, the decision meant that for months an impasse existed when no new style vehicle could be considered to be added to the approved list, yet all vehicles on that list could be licensed or relicensed irrespective of whether they fell foul of the new safety proposals emanating from Mr Broster's review. The Crown Court found that during that period there were decisions to grant 130 new licences to vehicles on the approved list before STATUS, the independent experts engaged by the Council, had delivered their preliminary report on 11th January 2004. The Crown Court expressed the view that the appellant was left in an unenviable position. Having, to all in extents and purposes, agreed with Mr Everatt the factors affecting the approval of the Doblo, it was suddenly stopped from advancing, not because of an adverse decision, but by the refusal of its principal officer to deal with the application and was left with no decision to appeal at law and in a hiatus.
24. The Crown Court also referred to the fact that all vehicles which were continued to be licensed under the old conditions were considered to be safe, but there had never been a significant safety incident under those conditions and the safety standards they promoted were considered by the Council to be adequate. The Court also referred to the fact that it had been told that no vehicle currently in production could comply with the Council's new conditions, although Mr Broster asserted that it may be possible for them to be rendered compliant by way of adaptation.
25. At paragraph 15(v) of the Case Stated, the Court explains its decisions in the following terms:

"As the Court is in the position to exercise the powers possessed by the respondent, the Court would also be entitled to exercise that power to treat the Doblo under the old conditions if there were reasonable grounds for doing so."

26. Miss Stockley says that the reasoning of the Crown Court does not support the conclusion, but in my view it does. It is clear from the judgment, and in particular from those extracts from the Case Stated which summarise the conclusions in the judgment, that the Crown Court considered that fairness dictated the result which it reached. In this regard, I would also draw attention to the fact that Miss Stockley criticises the Court for having applied a test of reasonableness which she says falls short of Wednesbury unreasonableness.
27. In my judgment, the Court was entitled to apply its own view of fairness and justice in deciding this appeal, and did so. For these reasons, I consider it is not necessary or appropriate for me to answer questions 2 to 6 inclusive. There was, in my judgment, no error of law in the decision of the Crown Court.
28. Finally, I would add this. On any view, there has been very considerable delay in dealing with the application of the respondent to this appeal. I would express the hope that the matter can now be reconsidered very speedily by Leeds City Council, and I would join in the hope expressed by the Recorder of Leeds that goodwill will now be shown by both parties in bringing this matter to a satisfactory conclusion.
29. I will hear counsel on the appropriate form of order.
30. MR OFFER: The first matter I would address the court on is the question of costs. In my submission, clearly, that ought to be payable by the appellant the respondent's costs. The order ought to be that the appellant pay the respondent's costs of this appeal, to be assessed if not agreed.
31. MR JUSTICE LLOYD JONES: Miss Stockley?
32. MISS STOCKLEY: My Lord, I cannot resist the principle of costs and therefore an order in those terms will be acceptable.
33. MR JUSTICE LLOYD JONES: Very well, the appellant will pay the respondent's costs of the appeal, to be assessed if not agreed.
34. MR OFFER: My Lord, apart from that, the appeal must be dismissed. Other than that, I am not sure there is a great deal the court can do. Certainly, the appellant will be anxious that its application now be considered at the Crown Court and to set a timetable. Having considered the matter, I am not sure this court has the power to do that.
35. MR JUSTICE LLOYD JONES: The Crown Court has already remitted the matter to the authorities so I am not sure that the matter goes back to the Crown Court.
36. MR OFFER: No, it does not. The only question is the timetable. It was remitted with certain dates in mind. They have now gone some months behind us.
37. MR JUSTICE LLOYD JONES: It is probably not for this court's jurisdiction to answer those questions.
38. MISS STOCKLEY: Can I indicate that the appellant has taken on board the observation of your Lordship in the hope that the matter can be resolved speedily, which should, hopefully, resolve that issue.
39. MR JUSTICE LLOYD JONES: I very much hope it may be possible to set a timetable which reflects the timetable originally intended by the Crown Court.
40. MR OFFER: Perhaps the best course is for Miss Stockley and myself to discuss that.
41. MR JUSTICE LLOYD JONES: I think that is very sensible. I think the order drawn up should include my answer to the question.
42. MR OFFER: Yes, it should.
43. MR JUSTICE LLOYD JONES: It is simply for your assistance in drawing up the order because I shall be asking you to do that.
44. MR OFFER: Certainly. I am sure that Miss Stockley and myself can do that.