QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| SARDAR and Others
|- and -
|WATFORD BOROUGH COUNCIL
James Findlay (instructed by Watford Borough Council Legal Services) for the Defendant
Hearing dates: 23 June 2006
Crown Copyright ©
Mr Justice Wilkie:
"(a) That no further hackney carriage vehicle licenses be granted pending the result of an unmet demand survey /or
(b) that the existing policy of "managed growth" be maintained notwithstanding the Council's decision to undertake a survey into unmet demand." The report described the consultation exercise which had been conducted. It included two postal surveys. At that stage officers had advertised for a consultant to conduct an unmet demand survey by the end of the calendar year. Seven tenders were being evaluated by officers with a view to appointing one of them.
The report to the committee contained the following paragraph:
"Since the last committee meeting, the Council received 56 applications for hackney carriage vehicle licenses from existing private hire vehicle drivers. Those applications were refused by officers in accordance with current policy and appeals have been lodged at St Albans Crown Court. The results of the unmet demand survey will be available to either justify subsequent policy decisions or to support the defence of those appeals"
"As it is the intention of the council to delimit the number of hackney carriage vehicle licences that are available, the recommendations contained in this report are to be deleted and replaced by:
That officers prepare a detailed report for the meeting of this committee to agree the manner' under which delimitation will take effect. This will include the provision of options for the committee to consider in relation to vehicle specifications and standards, vehicle livery, and changes to pre-licensing requirements for first time holders of Watford Borough Council driver's licences.
That any applicants for hackney carriage vehicle licences between now and the next meeting be informed of the Council's intentions and asked to withdraw their application.
Should they not withdraw then the Council will defer any determination until after the next meeting,
That those persons currently with appeals against the Council's refusal to grant a hackney carriage vehicle licence be informed of the Council's intentions."
"1. That officers prepare a detailed report for the next meeting of this committee to agree the manner under which delimitation will take effect. This will include the provision of options for-the committee to consider in relation to vehicle specification and standards, vehicle livery and changes to pre-licensing requirements for first time holders of Watford Borough Council driver's licenses. . . "
"1. Under the Transport Act 1985 the Council has the-power to limit the number of hackney carriage vehicle licences that it issues within the borough subject to satisfying itself that having set the limit there is no unmet demand. The Council has exercised this power to restrict the number of licences that have been issued and, save for a small increase in 1995, has adopted a policy of managed growth since March 2003. The Council now wishes to remove the limit on the number of licences it issues.
1. That the council no longer exercises its discretion under section 16 of the Transport Act 1985 to limit policy outlined in policy LC23 of 10 March 2003 and limits on the number of hackney carriage vehicle licences that it issues and that the current policy outlined in minute LC23 of 10 March 2003 be ended with immediate effect.... "
"1.1 The council has made the statement that it intends to remove the quantity restriction on the number of hackney carriage vehicle licenses it grants. This is commonly called delimiting...
1.2 At a meeting of the licensing committing on 5 September 2005 officers advised that it would be premature to delimit immediately as had been proposed as time was needed to consider vehicle and driver matters and so it was resolved...(there then appears the resolution referred to above)"
There was then a reference to a meeting on 14 September 2005 and a statement by the Mayor in response to questions from the floor. The report then goes on:
"1.3 The above makes it-clear that the licensing committee on 5 September accepted that the council was going to delimit and that it wanted on 20 October 2005 sufficient information to agree the manner under which delimitation would take effect" .
The addendum then set out a series of possible decisions and outcomes with the officer's recommendations and reasons. Those possible decisions and outcomes were as follows:
"The committee can finalise its decision to delimit, to take effect next working day -this is recommended for the following reasons. . .
The Committee can finalise its decision to delimit to take effect at a date in the future (such as 1st' February 2006) -this is not recommended for the following reasons....
The Committee can agree not to delimit or can defer the decision' to delimit for several months -this is not recommended for the following reasons...."
"The Court needs to consider ... whether, from the point of view of the fair minded and informed observer, there was a real possibility that the planning committee or some of its members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant . . . (licensing) issues. That is a question to be approached with caution, since it is important not to apply the' test in a way which will render local authority decision making impossible or unduly difficult."
The defendant says that an examination of the minutes of the meeting of 20 October demonstrates that there were no closed minds but a full and proper debate on the issue without any pre-emption of the decision on delimitation.
"Watford Borough Council has made a decision in principle to remove the policy of limiting the numbers of hackney carriages."
At paragraph 1.2 under the heading "Objectives" the report says:
"The prime objective of the study is to consult with a wide range of interested parties regarding the changes in policy..."
In paragraph 1.3.3, the report sets out the immediate context as being the appeal of 56 applicants for hackney carriage licences refused by the Council to the Crown Court. The report says "Watford Borough Council made the decision to remove the numerical limit as it was unlikely to be able to defend its current policy of restriction based on the 2001 evidence". The report proceeds in part 3 to describe the consultation. The introductory paragraph states as follows at 3.1.1:
"The consultation exercise sought to gain an understanding of the views from the trade, local stakeholders and the public regarding the removal of the numerical limit and potential changes to the Borough's licensing policies."
It then sets out how the consultation was structured and it includes discussion by focus groups on a number of issues, including de-restriction. The report then sets out the responses of the various focus groups and interested parties on each of the subjects consulted upon. The defendant relies upon the fact that Halcrow Ltd saw fit to seek the views of those whom it consulted on the principle of de-restriction as well as on the issues of detail which would need to be addressed in order to carry the decision into practice but that has to be viewed in the light of what the report says about the background.
"At its meeting on 5 September 2005, the committee made an in principle decision to cease to. exercise its power under section 16, to consult with interested parties on this proposal and it asked officers to prepare a detailed report to enable the council to consider the manner under which proposed de-limitation would take place."
They point out that within this paragraph the writer appears to face both ways on the issue whether there has been a decision in principle or whether what was at that stage under consideration was simply a proposal. They also rely on the fact that, within the minutes of the meeting of 5 September, the committee directed officers to seek the views of various groups and that an advertisement was to be placed in the Watford Observer inviting people to give their views about de-limitation. The defendant relies upon each of these passages as indicating that the decision on 5 September was to consult upon a proposal rather than to take a decision in principle and thereafter to consult on the manner of implementation of that decision.
"It is common ground that, whether .or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals-to allow those consulted to give intelligent. consideration and intelligent response; adequate time must be given for this purpose; and the product of consultation must be part, based on an assertion which has now been abandoned namely that "the trade has known for some time of the Council's ultimate intention to pursue total delimitation and consultation has taken place".