Grounds of appeal Rostron v GBC Livery licence suspension

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Contents

What this appeal is about

The Respondent (Guildford Borough Council) has adopted by a policy which has no special statutory protection from challenge, a hackney carriage vehicle licence condition that taxis in Guildford have to be wrapped in a green plastic livery.

The Respondents implicitly mistakenly believe that by the Local Government Act 2000 they have the power to do whatever they like as regards licencing in their local area of Guildford.

However, that Act, section 3 Limits on power to promote well-being.

(1)The power under section 2(1) does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment (whenever passed or made).

The Local Government Miscellaneous Provisions Act (LGMPA) does so limit the Local Authorities power by s47 and 48, which limits taxi and private hire licence conditions to those that are reasonably necessary.

The Respondent’s unfounded reason for the condition is for the public safety. They wrongly maintain that wrapping taxis in green livery will protect the public from abuse of the kind which occurred with Rotherham taxi drivers. They maintain this fiction even after it was pointed out to them that the taxis in Rotherham were already liveried white, and that livery did not protect the public in Rotherham.

The Respondents have consistently misled the Courts. Firstly, they wrongly maintained that the livery requirement was not a condition but was a policy and therefore could not be challenged in the Magistrates Court but mistakenly maintained that it could only be challenged by Judicial Review.

When the Magistrates accepted that the livery was a condition, the Respondents wrongly maintained that because the condition was the result of a policy it could only be challenged by Judicial Review, when the LGMPA s47 gives the Appellant that right.

Respondents seem also to have confused the law on taxi licencing conditions under the Local Government Miscellaneous Provisions Act 1976 with the law on license conditions on places of entertainment under the Licencing Act 2003. The Licensing Act 2003 gives Council policy a statutory basis with regard to places of entertainment which the LGMPA which governs taxis, does not.

The Council further mistakenly ignore that their powers under the Local Government Act 2000 are over ridden by any existing statutory provisions, of which section 47 of the LMPA is but one.

The bottom line is that by section 47 of the LGMPA, Councils cannot impose taxi licence conditions that are not reasonably necessary, if a person with standing, like the Appellant objects by way of appeal.

Skeleton argument

The Appellant has an unfettered right to appeal against a licence condition under s47 and s 48 of the LGMPA

That right is not restricted by any Council Policy regarding hackney carriage or private hire licence conditions that are not reasonably necessary.

There is no Act or case precedent which is contrary to that right under the LGMPA.

There is confusion in the practice of taxi law illustrated by the leading text book Button on Taxis, Licencing Law and Practice

Stating correctly at paragraph 8.124 that a hackney carriage or private hire vehicle licence condition can be challenged at every licence issue or renewal, by s47 LGMPA,

But, wrongly reporting in paragraph 3.22 that (any) appeal in a Crown Court or Magistrates Court where the Council has a policy can only be made by Judicial Review. That is mistaken on several grounds.

The Hope and Glory authority cited is for a place of entertainment governed by the Licencing Act 2003 and not the LGMPA, and

That authority was over ruled by Lord Justice Toulson in the Court of Appeal where he said, obiter:

51 Although the point is academic in the present case, we doubt the correctness of part of the district judge's ruling where he said:

"I am not concerned with the way in which the licensing sub-committee approached their decision or the process by which it was made. The correct appeal against such issues lies by way of judicial review."

52 Judicial review may be a proper way of mounting a challenge to a decision of the licensing authority on a point of law, but it does not follow that it is the only way. There is no such express limitation in the Act, and the power given to the magistrates' court under s181(2) to "remit the case to the licensing authority to dispose of it in accordance with the direction of the court" is a natural remedy in the case of an error of law by the authority. We note also that the guidance issued by the government under s182 and laid before Parliament on 28 June 2007 states in para 12.6:

"The court, on hearing any appeal, may review the merits of the decision on the facts and consider points of law or address both."

However, this point was not the subject of any argument before us.

Whilst the license condition is under appeal the Council cannot stop the Appellant from using it according to section 77 LGMPA.

The Defendant has raised the case of Wilcock v Lancaster City Council [2013] EWHC 1231 (Admin) (11 April 2013) which is authority for the proposition that section 68 of LGMPA can be used wherever and whenever a vehicle is not only mechanically unfit, but where there is non-compliance with any of the conditions attached to that vehicle licence.

However, even though leave to appeal that decision was refused, the Appellant maintains that the proper construction of the Act is that section 68 refers to

68 Fitness of hackney carriages and private hire vehicles

if he is not satisfied as to the fitness of the hackney carriage or private hire vehicle

That test is solely as to its fitness as a vehicle.

60 Suspension and revocation of vehicle licences.

may suspend…the hackney carriage…(if it)…is unfit for use as a hackney carriage

Defendant cannot enforce a license condition on a license that was not issued with the statutory notice


Grounds of appeal

  1. The questions of law for decision are:
    1. Can by section 47 of the Local Government Miscellaneous Provisions Act 1976 (LGMPA) clause (3), any person with standing and aggrieved by any condition attached to a hackney carriage vehicle licence, appeal to a magistrates’ court on the grounds set out in clause (1) that the condition is not reasonably necessary, where there is a Council policy which has no statutory basis under the Licensing Act 2004 or which is valid under the Local Government Act 2000 only to the extent that it is not over ridden by section 3(1) 0f that Act which says:

3 Limits on power to promote well-being.

(1)The power under section 2(1) does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment (whenever passed or made).


by section 47 on the LGMPA?


The Defendant has further failed to be candid in its explanations to the High Court and has sought to win at all costs particularly by hiring unnecessarily expensive Counsel at rates which are in excess of those charged by temporary High Court Judges and by the neighbouring Woking Borough Council who have worked for a day rate of approximately £650 ????? thereby deliberately exerting a chilling effect on the bringing of any legal challenge by Judicial Review.

Statement of Facts

  1. The App is a licensed hackney carriage driver in Guildford.
  2. The App has a Ford Mondeo registration number YT63UVU which is licensed as a hackney carriage number 68 (the taxi) by Guildford Borough Council (the D)
  3. The hackney carriage license (the License) is given by the D under section 47 of the Local Government Miscellaneous Provisions Act 1976, and section 37 of the Town Police Clauses Act 1847.
  4. On the 9th December 2015 the D decided as a policy that all existing hackney carriages were as a condition of their licenses to be liveried by cladding them in a green plastic wrapping.
  5. On the 22nd May 2017 Justine Fuller of the D licensed the taxi for one year from
  6. 1st June 2017 to 31st May 2018.
  7. The said licence included on its reverse side a new condition that:

The holder of the vehicle shall:

Ensure the vehicle complies with the hackney carriage livery policy requirement as detailed in Section 4 of the policy.

  1. Section 4 of the policy says:

4. Vehicle Appearance

4.1 All taxi vehicles licensed at the commencement of this policy need to fully comply with these requirements by 1 January 2018.

4.2 In addition, all changes of vehicle on existing taxi vehicle licences and taxi vehicles licensed for the first time after 9 December 2015 must meet the requirements.

4.3 All new private hire vehicles licensed after 1 March 2016 must comply with these requirements. Existing private hire vehicles must comply with these requirements from the first renewal date after 1 March 2016.

Hackney Carriages (Taxis)

4.4 Vehicles must have a full external Pantone 321 coloured livery.

4.5 The words “Licensed Taxi” should be displayed on the front passenger and driver’s doors.

  1. Section 47 of the LGMPA gives a right of appeal via section 77 of the LGMPA against a license condition within 21 days.
  2. Section 77 of the LGMPA allows the Appellant to continue to use the hackney carriage whilst he is appealing against a license condition under section 47.
  3. The Appellant did appeal under section 47 of the LGMPA to Guildford Magistrates Court on the 3rd of January 2018 against the said license condition that the taxi be liveried.
  4. The Appellant’s appeal to the Magistrates was within 21 days of the 1st of January 2018 being the date on which the said livery license condition came into force on this taxi.
  5. Therefor the Appellants taxi license should not be suspended for failing to comply with the livery licence condition, and the Appellant should be allowed to continue to use it as a taxi driver.
  6. Additionally, section 300(3) of the Public Health Act 1936 requires that all notices which can be appealed shall state the right of appeal to a court of summary jurisdiction and the time within which such an appeal may be brought.
  7. The license issued on the 22nd May 2017 was defective as it did not contain the required notice.
  8. The defect was complained about by the Appellant when discovered on 11th July 2017, and the Defendant acknowledged the defect by letter of 20th July 2017.
  9. The Defendant issued a copy of the taxi license on the 25th September 2017 which did contain the statutory notice of a right to appeal within 21 days notice of the issue of the license which was the 1st June 2017, being the date on which notice of the council’s requirement, was served on me. Therefore in that case, the right of appeal notified was useless due to lapse of time.
  10. Guildford Magistrates held on at a hearing in December 2015 of an appeal by Mr David Williams-Wynn against the livery license condition, that they would not hear his appeal until the condition was actually in force on his taxi, and the license livery condition did not come into force on this taxi until the 1st January 2018.
  11. The original license issued did not contain the notice of the statutory right of appeal as required by law and so the livery requirement contained in it cannot be enforced.
  13. The D was wrong to suspend App hackney carriage license on 4th January 2018
  15. And was wrong to decide that his licence condition created by a Council policy related to hackney carriage vehicle licencing could not be challenged by appeal under section 47 of the Local Government Provisions Act 1976 (LGMPA)
  16. And was wrong to decide that the Councils belief that a licence condition was reasonably necessary could not be challenged on the grounds that the condition was not reasonably necessary set out in the LGMPA.
  17. The novel questions of law for decision are:
    1. Can by section 47 of the Local Government Miscellaneous Provisions Act 1976 (LGMPA) clause (3), any person with standing and aggrieved by any condition attached to a hackney carriage vehicle licence, appeal to a magistrates’ court on the grounds set out in clause (1) that the condition is not reasonably necessary, in the following cases:
      1. Where there is no Council policy
      2. Where there is a Council policy which has no statutory basis under the Licensing Act 2004
    2. And similarly by section 48 of the Local Government Miscellaneous Provisions Act 1976 (LGMPA) clause (7), can any person with standing and aggrieved by any condition attached to a private hire vehicle licence, appeal to a magistrates’ court on the grounds set out in clause (2) that the condition is not reasonably necessary, in the following cases:
      1. Where there is no Council policy
      2. Where there is a Council policy which has no statutory basis under the Licensing Act 2004
  18. Durham City Council v Fets 2005 in Newcastle Crown Court was decided in favour of the appellant on almost exactly the same facts. It is in the interests of Public Policy that the law be applied evenly.
  19. Both the Magistrates and Crown Courts appear to be misapplying the law on a routine basis because there is no properly decided Higher Court guidance for them on this subject.
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