England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st December 2005

Mr Justice OWEN :

1. The claimant is a licensed London Hackney carriage driver. On 26^th November 2004 he was served with a notice issued by the defendant prohibiting him from entering Heathrow Airport other than as a bona fide airline passenger or to drop off a booked fare until further notice. He seeks an order of the court quashing the prohibition notice.
2. The defendant, a subsidiary of BAA plc, is the owner and operator of Heathrow Airport. Heathrow Airport is a designated airport for the purposes of section 63(1) of the Airports Act 1986; and in consequence as the airport operator the defendant "… may make byelaws for regulating the use and operation of the airport and the conduct of all persons while within the airport." By section 63(2) "Any such byelaws may, in particular, include byelaws -

(a) for securing the safety of aircraft, vehicles and persons using the airport and preventing danger to the public arising from the use and operation of the airport;

(c) for preventing obstruction within the airport;

(d) for regulating vehicular traffic anywhere within the airport, except on roads within the airport to which the road traffic enactments apply, and in particular (with that exception) for imposing speed limits on vehicles within the airport and for restricting or regulating the parking of vehicles or their use for any purpose or in any manner specified in the byelaws;

(e) for prohibiting waiting by hackney carriages except at standings appointed by such person as may be specified in the byelaws;

(f) for prohibiting or restricting access to any part of the airport…."

3. In pursuance of the power vested in it by section 63, the defendant issued the Heathrow Airport–London Byelaws 1996 (the byelaws). In the same year the defendant issued the Heathrow Airport–London (Waiting and Loading Restriction) Order 1996 (the order) in exercise of the powers vested in it by the Road Traffic Regulation Act 1984 as amended. Under the regulatory framework contained in the byelaws and the order:

(1) There is a general bar on "touting" (offering a vehicle for hire) (byelaw 4(13)).

(2) There is a general bar on causing or permitting a vehicle to wait at any time in any restricted road (see Part 2 of the Order, in particular Article 5 and schedule 1). Restricted roads are marked and signed to reflect the 'No Waiting' rule, disregard of which will be:

(a) Non-compliance with signs (byelaw 3(28)) and can constitute

(b) An obstruction (byelaw 9(6)). The 'Terminal 4 Arrivals Pick-Up lane' is a restricted road (the Order schedule 1 item 75).

(c) Some parts of restricted roads are designated as 'cab ranks' (Article 3(i)) to which the bar on waiting does not apply in the case of "London taxis when waiting on a cab rank for the purpose of picking up passengers" (Article 14(ii)). Taxis can ply for hire at these authorised standings if authorised to do so (byelaw 9(1)(a)). They do so by first passing through a designated feeder park (byelaw 9(10)-(11)).

(d) Other parts of restricted roads are designated as 'marked London Radio Taxi Bays' to which the bar on waiting does not apply in the case of 'Authorised London Radio Taxis' waiting "for the purpose of picking up pre-booked passengers" where "the vehicle is waiting on a marked London Radio/Computer Taxi bay" (Article 13(ii)). Marked London Radio Taxi bays are marked and signed to reflect their 'Radio Taxi' status. Disregard of such signs will constitute non-compliance with signs (byelaw 3(28)).

4. There are therefore two ways in which a taxi cab driver can operate to pick up fares at Heathrow. First he can participate in the authorised scheme ("see 3(2)(c" above). According to the witness statement made by Stephen Cumber, a member of the defendant's Commercial Transport Team, there are approximately 4500 taxis registered to participate in the system. Their drivers pay a fee every time that they use the system, as a contribution to its operating costs which total approximately £2.7 million per annum. The system operates in the following manner. Any London Licensed Taxi driver who wishes to ply for hire from the taxi ranks at each of the Airport's four terminals must register with the defendant and pay the necessary fees. When using the system the driver must enter a holding area, away from the terminals, which operates as a feeder park for the taxi ranks. Taxis queue at the feeder park until a space becomes available on a taxi rank at one of the terminals. The system is designed to ensure that each of the terminals is supplied with an appropriate number of taxis for hire. It is also designed to be fair to all taxi drivers wishing to ply for hire from the airport, in that all are required to wait their turn in an orderly manner before picking up a passenger. The system also serves to minimise the security risk that could arise if taxis were permitted to park outside each terminal in an uncontrolled manner.
5. Secondly a cab driver can participate in the "London Radio Taxi" scheme. There are taxi bays at each terminal at the airport designated for the sole use of radio taxis waiting to pick up pre-booked passengers. A cab driver is authorised to use such bays through membership of a London radio taxi circuit, of which there are a number. When picking up passengers from a radio taxi bay, radio taxis are not required to go first to the holding park, but can proceed straight to the radio taxi bay at the relevant terminal to pick up their pre-arranged booking.
6. The claimant is neither a registered member of the taxi system, nor is he a member of a radio taxi circuit, having been expelled from a circuit in December 2002 for illegal use of radio taxi bays.
7. The prohibition that the claimant seeks to challenge was issued under Byelaw 3(14) which provides that:

"Prohibited Persons

No person shall enter the airport, except as a bona fide airline passenger, whilst having been prohibited in writing from entering by the Airport Company."

8. The prohibition notice was dated 26^th November 2004. It informed the claimant that its author, Dominic Lowe, the general manager of the defendant's Commercial Transport Team, had been notified by the Metropolitan Police that he, the claimant, had "… been ejected from or arrested at Heathrow Airport on the following occasions." There then followed a table setting out brief details of 19 incidents. The letter continued:

"Accordingly Heathrow Airport Limited (HAL) have considered these offences, believe that your behaviour is now unacceptable, and give you notice that as from the date of this letter until further notice you are prohibited from entering Heathrow Airport other than as a bona fide airline passenger or to drop off a booked fare. If, in future you are found on Heathrow Airport not being a bona fide passenger or dropping off a booked fare, action will be taken under Byelaw 3(14) of the Heathrow Airport – London Byelaws 1996 and in addition, Heathrow Airport Limited will consider taking injunction proceedings.

A copy of the Heathrow Airport London Byelaws 1996 is enclosed."

9. The incidents identified in the prohibition notice fell into 3 categories. First there were three incidents involving approaches to passengers. In February 2000 the claimant was reported for the offence of touting for hire at Terminal 4, and in August 2002 for the offence of plying for hire. Thirdly the notice records that on 22 July 2004 –

"Seen 3 times during the day by Police Community Support Officer 7108. Mr Scott was seen approaching different groups of passengers and engaging them in conversation. On seeing the Officer he jumped into his cab and made off. Officer reports Mr Scott being 'Rude and aggressive'"

10. Secondly the notice identifies a number of incidents involving the Terminal 4 arrivals pick-up lane. There were 8 occasions upon which he is recorded as having left his cab unattended in the arrivals pick-up lane, and two further occasions on which he was seen in the pick-up lane, and when approached by an officer made off.
11. Thirdly the notice records six incidents involving the claimant's use of the radio taxi bays at Terminal 4. They include "taking unauthorised jobs" (5/11/01) and "touting" (4/2/03). The four incidents recorded in 2004 involved his being in the bay, and when approached by police officers, making off.
12. There are two limbs to the claimant's challenge to the prohibition notice. First he submits that there was no reasonable basis for the decision to issue the notice; secondly he challenges the procedural fairness of the process involved in its issue.
13. THE UNREASONABLENESS CHALLENGE

It is submitted on behalf of the claimant that the prohibition notice was a step that no reasonable or responsible airport operator could have taken in the proper exercise of its operational or managerial judgment.

14. The first point taken by the claimant is that a number of the matters relied upon in the prohibition notice did not amount to a breach of the Byelaws. The claimant contends that on the proper construction and application of the Byelaws, the incidents relating to the use of the radio taxi bay/Terminal 4 radio taxi rank and of the Terminal 4 arrivals pick-up lane, did not amount to a breach.
15. The Radio taxi bays/Terminal 4 radio taxi rank

The Order contains a number of relevant provisions. At Article 3 there are definitions of 'cab rank' and 'London Radio Taxis' –

"'cab rank' means any area of any carriageway being an area appointed as a standing for hackney carriages authorised by Heathrow Airport Limited.

'London Radio Taxi' means a London Taxi operating for the purpose of picking up pre-booked passengers"

Part II of the Order contains the general restriction on waiting (Article 5) to which reference has already been made at paragraph 3(2) above. Part III contains 'Exceptions and Exemptions from Restrictions". Article 13(ii) is in the following terms –

"Authorised London Radio Taxis

13(ii) The restrictions imposed by Part II of the Order shall not apply in relation to licensed London taxis when waiting for a period not exceeding 40 minutes in the roads listed at items 23, 24, 70 and 75 in Schedule 1 to this Order, for the purpose of picking up pre-booked passengers and their baggage, providing that the vehicle is waiting on a marked London radio taxi bay, and is at no time left unattended."

On 12 March 2003 Article 13(ii) was amended to read –

"The restrictions imposed by Part II of the Order shall not apply in relation to licensed Radio/Computer Circuit London Taxis when waiting for a period not exceeding 40 minutes in the roads listed at items 23, 24, 70 and 75 in Schedule 1 to this Order, for the purpose of picking up pre-booked passengers and their baggage, providing that the vehicle is waiting on a marked London Radio/Computer Taxi bay, and is at no time left unattended."

The amendment took effect from 30 March 2003, and accordingly was in operation for all but the first two incidents listed in the prohibition notice.

16. The claimant contends that his cab falls within the definition of a 'London Radio Taxi', and that accordingly he is permitted under Article 13(ii) to use the bays designated for London Radio taxis, or since March 2003, the bays designated for London Radio/Computer taxis, notwithstanding that he is not a member of a radio taxi circuit. When considered in isolation, Article 13(ii) arguably bears the construction for which the claimant contends. But it has to be considered in context, namely the scheme for the control of parking in general and the operation of taxis in particular. Byelaw 9(1) provides that "No person shall cause or permit a Taxi to ply for hire or load passengers unless (a) he is authorised to do so by the Airport Company". The heading to Article 13 makes it clear that it is intended to apply to 'authorised' London Radio Taxis, ie to those drivers authorised to use such bays by virtue of their membership of a London Radio Taxi circuit. The effect of the claimant's construction would be to undermine the scheme by enabling all London radio taxis to use the relevant bays, whether members of a London Taxi circuit or not. In this context I bear in mind the observations of Lord Denning MR in Cinnamond as to the proper approach to construction of byelaws -

"The Latin maxim is Ut res magis valeat quam pereat- it is better for a thing to have effect than to be made void. If it is drafted in words which on a strict interpretation may be said to be too wide, or too uncertain, or to be unreasonable, then the court – so long as the words permit it – should discard the strict interpretation and interpret them with any reasonable implications or qualifications which may be necessary to produce a just and proper result."

But in any event the issue is in my judgment put beyond argument by the amended version of Article 13(ii) which makes it clear that the exemption applies to members of a London taxi circuit, whether radio or computer controlled. As the claimant is not a member of a circuit, and has not been since December 2002, he has not been permitted to use the radio taxi bays since that date.

17. The 'Arrivals pick-up lane'

The claimant advanced two arguments in relation to the Terminal 4 arrivals pick-up lane. By paragraph 17 of his witness statement dated 6 September 2005 he sought to meet the allegation that on six of the occasions identified in the prohibition notice he had left his cab unattended in the arrivals pick-up lane, by arguing by reference to byelaw 6(4) that it was not unlawful to leave his vehicle unattended provided that neither the engine was left running nor the ignition key left in. He asserted that he would not have left his cab in that way under any circumstances. He now accepts that the point is wholly misconceived as Article 6 applies to those parts of the airport to which the road traffic enactments do not apply, and not to the arrivals pick-up lane.

18. Secondly he says that he is entitled to set down at the arrivals pick-up lane, arguing that Article 11 makes clear that notwithstanding the restriction in Article 5, it is not unlawful to cause or permit any vehicle to wait in a restricted road for so long as may be necessary for the purposes of enabling any person to board or alight from the vehicle. This argument is another contrived attempt to find a loophole in the regulatory regime. On the ten occasions identified in the prohibition notice relating to the Terminal 4 arrivals pick-up lane, the information recorded is that the claimant's cab was seen unattended. There is a plethora of signs at or about the arrivals pick-up lane to the effect that parking is prohibited, and that vehicles must not be left unattended. By Byelaw 3(28) "No person whether on foot or whilst driving or propelling a vehicle shall neglect, fail or refuse to comply with …(a) sign exhibited by or on behalf of the Airport Company. Article 11 of the Order is a limited exception to the prohibition on parking in a restricted road. It cannot be relied upon to justify leaving a vehicle unattended in contravention of the signage at the arrivals pick-up lane.
19. It is further submitted that the decision to issue the prohibition notice was flawed in the decision maker took account of immaterial (or false) and unfair considerations. Mr Green, who appeared for the claimant, developed his submission under four heads. First he relied upon the fact that the notice referred to a conviction at the Uxbridge Magistrates Court on 14 February 2000 for the offence of touting for hire at Terminal 4, whereas that conviction was subsequently quashed on appeal. Similarly with regard to the occasion on 7 August 2002, the claimant was reported for the offence of plying for hire; but the subsequent proceedings resulted in his acquittal on appeal in 2003. The claimant's solicitors drew attention to his acquittal in relation to the offence on 14 February 2000 in their letter of 1 December 2004, to which the defendant responded in its letter of 17 December 2004. It said that the Metropolitan Police at Heathrow Airport had no record of the appeal, but that enquiries would be made. It continued:

"Notwithstanding the above touting offence my client's letter of 26 November 2004 detailed 19 incidents which are all breaches of the Byelaws, in which your client was involved while at Heathrow Airport. Your letter of 1 December 2004 has only addressed one of these and you have failed to address the other 18 incidents which have been reported to HAL. Further since the last reported incident on 2 December 2004 your client has been involved in two further incidents which HAL consider your client's behaviour as unacceptable as detailed."

The letter then set out details of the further incidents and concluded that the prohibition would not be withdrawn. The first of the two further incidents was said to have occurred on 15 October 2004, and involved the claimant making approaches to passengers. The second occurred on 21 October 2004 when the claimant's cab was again observed unattended in the arrivals pick-up lane.

20. Mr Green argued that the defendant ought not to have taken into account the two incidents in relation to which the claimant's convictions were subsequently overturned on appeal; secondly that the defendant ought not to have taken the two further incidents identified in the letter of 17 December 2004 into account. As to the first, and as Mr Fordham readily acknowledged, the defendant was under a continuing obligation to consider whether the prohibition should be maintained in the light of information provided by the claimant. As is clear from the letter of 17 December, the defendant considered whether the prohibition should be maintained in the light of the fact that the conviction relating to the incident on 14 February had been overturned. As to the incident on 7 August 2002, the fact that the conviction to which it gave rise was overturned, was not brought to the attention of the defendant in the claimant's solicitor's letter of 1 December 2004. As to the two further incidents identified in the letter of 17 December, the defendant was in my judgment fully entitled to take them in to account when addressing the question of whether the prohibition should be maintained. Conduct following the issue of the notice was plainly relevant to the question of whether it should be maintained.
21. Secondly Mr Green sought to rely upon the fact that of the nineteen incidents relied upon in the notice, ten occurred more than six months before the date upon which it was issued. He submitted that in those circumstances, and bearing in mind that the claimant had not been warned in relation to the remainder, it was unfair for them to have been taken into consideration. In my judgment that submission is without substance. There is no basis for the argument that only incidents occurring within the six month period within which a prosecution can be brought, can be taken into account by the defendant in deciding whether to issue a prohibition notice. The defendant was fully entitled to take account of relevant conduct on the part of the claimant over a longer period.
22. Thirdly Mr Green argued that the defendant was wrong to refer to the matters set out in the schedule as "offences" when, save for the two matters to which I have made reference above, no proceedings were initiated and accordingly did not result in convictions. In my judgment it was reasonable for the defendant to refer to the alleged breaches of the Byelaws in this context as "offences". I have no doubt that the defendant based its decision on the substance of the observations, rather than the label attached to them. The second strand to the claimant's argument was that the defendant could not reasonably rely on the incidents identified in the prohibition notice as the alleged offences had neither been admitted by the claimant nor proved before a court. I am not persuaded that the defendant may only rely on reported observations of breach of the byelaws if they result in convictions or if the breaches are admitted. There are a number of considerations that may affect a decision by the police to prosecute, considerations that are not relevant to the exercise by the defendant of its statutory power to operate Heathrow Airport. In my judgment there is no basis for restricting the defendant in its exercise of its power to issue a prohibition notice in the manner for which the claimant contends.
23. Finally Mr Green submitted that the assertion in the prohibition notice that the claimant "had been ejected from or arrested at Heathrow airport on the following occasions" was simply not correct, and was not borne out by the particulars given of the occasions in question. That criticism is justified. The passage of which complaint is made is not borne out by the particulars given of the incidents in question. But in my judgment it is clear from the prohibition notice that what was of importance was the alleged conduct on the part of the claimant, not the steps taken in response to it.
24. It follows that I am satisfied that there was material upon which the defendant could reasonably and responsibly have both issued the prohibition notice and decided to maintain it following receipt of the claimant's solicitor's letter of 1 December 2004.
25. PROCEDURAL FAIRNESS

The claimant submits that the issue of the prohibition notice was unfair in that it was issued without warning, and secondly that he was not given any opportunity to make representations as to the matters relied upon by the defendant. In developing that submission Mr Green took as his starting point the judgment of the Court of Appeal in Cinnamond and others v British Airports Authority [1980] 1 WLR 582 in which six car-drivers were served with prohibition notices prohibiting them from entering Heathrow Airport other than as bona fide airline passengers. The drivers sought to challenge both the validity of the Byelaws under which the prohibition notices were served, and the fairness of the procedure adopted by BAA. In dismissing the drivers' challenge the Court of Appeal held inter alia that -

i. a lawful prohibition is one which is fairly and reasonably warranted by the circumstances of the case (589H).

ii The airport authority was under a duty to act fairly and reasonably (591C and 593C-D).

iii. Its decision was subject to Wednesbury review (592G-H).

iv. On the facts of the case the drivers could have had no legitimate expectation of an opportunity to make representations before issue of the prohibition notices (591A-B, 592A, 593C-D).

v. Even if there were an obligation to give an opportunity to make representations, there was no prejudice because any such representations would in the circumstances have been to no avail (593E-F).

26. Mr Green based his argument on the uncontroversial proposition that the defendant was under a duty to act reasonably and fairly. He acknowledged that in the light of the judgments in Cinnamond, there may be cases where the circumstances do not require a taxi driver to be given prior notice of possible prohibition; for example the threat of serious imminent misconduct may rule out a prior warning; so too may a prolonged period of ineffective enforcement action as in Cinnamond. But he argued that in this case there were no features justifying the issue of the notice without warning and without giving the claimant the opportunity to make representations. He submitted that the claimant had received no prior notice that he had acted as alleged in the notice, nor that the allegations would be relied upon by the defendant as justifying the issue of the notice. Secondly he argued that in the light of the defendant's conduct in 2001, and the general requirement of fairness articulated by Lord Denning MR in Cinnamond, the claimant had a legitimate expectation that before the defendant issued a prohibition notice it would inform him of the matters upon which it was intended to rely, and give him an opportunity to make representations.
27. The conduct of the defendant in 2001 upon which the claimant sought to rely is that following the claimant's conviction for the offence of 'taxi touting' on 14 February 2000, the defendant wrote to him on 20 March 2001 warning "… that if any further byelaw offences are reported to us by the Metropolitan Police or their traffic wardens, Heathrow Airport Ltd. will have no hesitation in prohibiting you from entering Heathrow Airport other than as a bona fide passenger or as a taxi driver setting down at Heathrow Airport". The conviction was quashed on appeal on 22 May 2001, following which the defendant wrote to the claimant on 12 December 2001 withdrawing the warning letter of 20 March 2001.
28. In my judgment the procedural fairness challenge fails for a number of reasons. First and contrary to the submission advanced on behalf of the claimant, this is not a case of the absence of any prior warning. On 24 August 2004 the Metropolitan Police wrote the claimant a letter headed "Re: Unauthorised Plying For Hire". The letter informed the claimant that the author, PC Bate of the 'Tout Squad' Heathrow police, had received information that on a number of occasions he had been witnessed picking up fares within the confines of the airport at places other than at authorised taxi stands, that he was committing a number of offences by his actions, and that it was PC Bate's intention "… to vigorously enforce these laws should this continue." The letter also contained the following paragraph:

"Such breaches of byelaws may also result, not only in prosecution, but also in being prohibited/injuncted from entering this airport or its confines at any time. Heathrow Airport Limited has stated that they will enforce this prohibition with vigour."

Following receipt of that letter the claimant could not have been in any doubt of the consequences of further breaches of the Byelaws.

29. Secondly, and as was accepted on behalf of the claimant, there is no rule requiring a warning to be issued and ignored before the defendant may exercise its power to prohibit entry to the airport in discharge of its functions as the airport operator. As was submitted on behalf of the defendant there is nothing "intrinsically objectionable" about a power to issue a prohibition without prior notice, see R (M) v SS for Constitutional Affairs 2004 EWCA Civ 312, [2004] 1 WLR 2298 at para 39 (2).
30. Thirdly there was no promise or practice such as to give rise to a legitimate expectation of a prior warning. The position is analogous to that in R v Falmouth & Truro Port Health Authority ex parte South West Water Ltd., [2001] QB 445 in which the court held where the law did not impose a general duty on an enforcing authority to consult the alleged perpetrator of a nuisance before serving an abatement notice, "only a very clear assurance could give rise to a legitimate expectation of consultation". At 458E Simon Brown LJ addressed the issue of legitimate expectation and referred to his own judgment in R v Devon County Council ex parte Baker [1995] 1 All ER 73, 89 in which he said:

"(4) The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure, not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. Fairness requires that the public authority be held to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by way of established practice. R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators' Association [1972] 2QB 299 and Attorney General of Hong Kong v Ngun Yuen Shiu [1983] 2 AC629 are illustrations of the court giving effect to legitimate expectations based upon express promises; Council or Civil Service Unions v Minister for the Civil Service [1985] AC374 an illustration of a legitimate expectation founded upon practice albeit one denied on the facts by virtue of the national security implications."

At 459B he continued:

"Once one accepts … that consultation was "not otherwise required by law", then only the clearest of assurances can give rise to its legitimate expectation: see R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569-1570, …"

The defendant's conduct in 2001 cannot be construed as giving rise to a legitimate expectation of a prior warning.

31. Fourth, having received the prohibition notice, and save for his solicitor's letter of 1 December 2004, the claimant neither sought any further information as to the incidents relied upon by the defendant, nor made any representations relating to them. As was submitted on behalf of the defendant, the recipient of such a notification, who wishes to make informed representations and considers that he is hampered in so doing by lack of detail in the allegations made against him, can be expected to seek clarification, see R v SS for Transport ex parte Richmond LBC [1994] 1 WLR 74, 97G.
32. Finally the prohibition took effect until further notice. The claimant complains that he should have been able to make representations to persuade the defendant not to issue the prohibition. But having received the notice, it was open to him to make any representations or provide any information that he wished. The defendant made clear by its letter dated 17 December 2004 that it was prepared to consider any further representations or evidence in relation to the incidents identified in the prohibition notice. As Lord Denning MR observed in Cinnamond the appellant taxi drivers "… could have made representations immediately if they wished, in answer to the prohibition notice" (591B), "it is always open … to apply for it to be ended" (593B), "any representations which were desired to be made could have been made immediately by letter", (593D). Those observations apply equally to the claimant. In the event it was not until he made his witness statement of 6 September 2005, a month before the date fixed for the hearing of his application on 6 October 2005, over ten months after the issue of the notice on 26 November 2004, that he sought to address the substance of the matters relied upon by the defendant.
33. I am satisfied that when viewed as a whole, the process was fair to the claimant. It follows that this limb of the challenge also fails.