Ice cream, second-hand cars and taxis! By David Wilson

The connection might not be obvious, but cases relating to the sale of ice cream, the provision of information by second-hand car dealers and taxis all featured prominently in the legal arguments presented to Newcastle Magistrates’ Court in Blue Line Taxis (Newcastle) Ltd v Newcastle City Council on 9 and 10 January 2012.
Because there has been so much speculation and misleading information circulating about the outcome of this case, I shall untypically summarise the result, before explaining the significance of ice cream and second-hand cars!
Blue Line Taxis (Newcastle) Ltd won the appeal against the decision of Newcastle City Council to revoke its private hire operator’s licence for not complying with conditions prohibiting the use of out-of-district hackney carriages and not maintaining “an independent operation in Newcastle by the installation of a dedicated telephone line to the Newcastle office with its own unique number.”
The appeal raised three substantive legal issues.  The first, which concerned the allegedly late service of the written notice of revocation, was dealt with as a preliminary point.  The other two issues related to the imposition of conditions by Newcastle City Council prohibiting the use of out-of-district hackney carriages to fulfil advance bookings and the use of a telephone number that was capable of being answered at offices in Newcastle and North Tyneside, where each office was licensed by the council for that area.
If the court had accepted the submissions made on behalf of Blue Line Taxis (Newcastle) Ltd in relation to the preliminary point, the court would not have had to hear and determine the substantive issues, which might well have been a great disappointment to more than just those of us who were involved in the case.  For the benefit of those who do not know already, I should make it clear that I am retained by Blue Line Taxis and was involved in this case.  Indeed, unlike every other commentator, I was not only present at the handing down of the judgment, but was present in court throughout the whole of the hearing.
Put simply, it was argued that section 62(2) of the Local Government (Miscellaneous Provisions) Act 1976 requires a council to serve written notice of the grounds for suspension, revocation or refusal to renew a private hire operator’s licence within 14 days of the day on which the decision was made; and that Newcastle City Council had not served the notice until 21 days after the decision was made.
The argument advanced on behalf of Blue Line Taxis (Newcastle) Ltd was that the sequential and combined effect of three statutory provisions was to require the written notice of the reason for suspension, revocation or refusal to renew a private hire operator’s licence to be served within 14 days of the day on which the decision was made and for it to include a notice setting out the right to appeal against the decision to a magistrates’ court.
In summary, section 62(2) of the 1976 Act requires notice to be given within 14 days, but is silent as to whether such notice may be given orally or whether it must be given in writing.  Section 300(2) of the Public Health Act 1936, which has effect as if it were incorporated into the 1976 by section 77(1) of that Act, suggests that the notice must be in writing, because it refers to the notice being “served”, but any uncertainty that might have existed is removed by the express reference to “the document . . . shall state the right of appeal” in section 300(3) of the 1936 Act.
Newcastle City Council argued that there could be two notices!  They said that, because the first notice was given orally at the hearing on 17 December 2010, it was given within the 14 days in which notice had to be given; and therefore implied that there was no time limit in which they had to serve the written document giving the reasons for the decision and of the right of appeal.
Unlike the District Judge, I do not prefer Newcastle’s argument!
Not only do I not like it, because it fails to accept that the “notice” referred to in section 62(2) is the same notice as referred to in sections 300(2) and (3) of the 1936 Act, but because it also fails to recognise that the High Court held in Stockton-on-Tees Borough Council v Latif [2009] EWHC 228 (Admin) that there is a limited time in which an appeal may be commenced and that the courts have no power to extend that time limit.  If Newcastle’s argument was right, a council could arguably frustrate Parliament’s intention to provide a person with a right of appeal by simply giving oral notice of its decision at a hearing and then withholding written notice of the reasons and of the right of appeal, because it is that notice that triggers the right of appeal.
If individuals, such as Mr Latif in the 2009 Stockton case, who do not have the financial and legal resources of a council, have to comply strictly with time limits, why should councils with all their resources be excused from complying with them?
However, the issue of greatest significance was that relating to the use of out-of-district hackney carriages by a licensed private hire operator.  For the avoidance of doubt, I should mention that Newcastle City Council acknowledged that they accepted a wholly unlicensed individual could perfectly lawfully accept bookings for hackney carriages licensed and used anywhere within England and Wales.  In the circumstances, the issue was whether a council could lawfully restrict the commercial activities of a licensed operator in the use of out-of-district hackney carriages when it accepted it could not interfere with those activities, if undertaken by someone who is unlicensed.
In successfully challenging the imposition of the conditions prohibiting the use of out-of-district hackney carriages, Blue Line Taxis (Newcastle) Ltd relied primarily on four cases, being two High Court taxi cases and two House of Lords appeal cases from Scotland relating to the sale of ice cream in 1904 and sale of second-hand cars in 2004.
The two High Court cases were R (on behalf of Newcastle City Council) v Berwick-upon-Tweed Borough Council [2008] EWHC 2369 (Admin) and Stockton-on-Tees Borough Council v Fidler [2010] 2430 (Admin).  The first of the cases concerned the power of a council to licence (or to refuse to licence) a hackney carriage that was to be used exclusively or predominantly remotely from the area in which it was licensed; and the second whether an operator or driver committed criminal offences by using out-of-district hackney carriages for private hire purposes in the area of another council.  In the Berwick case, the High Court held that a council could in the exercise of its discretion refuse to licence a hackney carriage that was to be exclusively or predominantly used remotely from the area of the council with which it was licensed.  In the Stockton case, the High Court not only held that no criminal offences were committed, but Lord Justice Munby at paragraph 56 of the judgment of the court accepted “the inherent right of the hackney carriage proprietor to undertake pre-booked hirings anywhere in England or Wales.”
However, the conditions prohibiting the use of out-of-district hackney carriages were challenged on the basis that they were unlawful, because they were imposed by the council in excess of the statutory powers provided by section 55 of the Local Government (Miscellaneous Provisions) Act 1976.
The first of the two House of Lords cases was Rossi v Edinburgh Corporation [1904] AC 21, being the ice cream case.  By virtue of a Local Act, the selling in Edinburgh of ice cream could only be undertaken with a licence on days and at times permitted by a licence.  Rather than merely imposing conditions on the licence to regulate the times at which ice cream could be sold, conditions were imposed that required premises to be closed, which had the effect of preventing licence holders from engaging in other unlicensed and lawful commercial activities.  The House of Lords held that the conditions exceeded the statutory powers and were therefore unlawful.
In the more recent 2004 case of Stewart v Perth and Kinross Council [2004] UKHL 16, the House of Lords determined an appeal in relation to the conditions attached to a licence requiring second-hand car dealers to display a copy of a full vehicle inspection report and, upon sale of the vehicle, provide a copy of it to the buyer.  However, the legislation provided for the second-hand car dealer to only complete a full vehicle inspection report and to retain a copy of it for three years as part of their trading records.  In approving the principles of the 1904 ice cream licensing case, the House of Lords again held that, no matter how well intentioned and supported such consumer protection conditions might be, the council had exceeded its statutory powers and the conditions were unlawful.
As a hackney carriage has an inherent right to undertake pre-booked work anywhere in England and Wales, like a person selling ice cream in 1904 in Edinburgh had the right to open their shop to sell other goods when prohibited to sell ice cream, Blue Line Taxis (Newcastle) Ltd successfully argued that the imposition of conditions prohibiting the use of out-of-district hackney carriages was similarly an excess of the council’s statutory powers.
The final issue was that relating to telephone numbers and maintaining an independent operation in Newcastle.  Contrary to assertions made in other articles, Blue Line Taxis (Newcastle) Ltd had never “promised” to use a telephone number that was unique to the Newcastle office, but had always stated its intention was to use the long-established telephone number that was also answered at its offices in North Tyneside.
The conditions were challenged on a number of grounds, namely: (i) they had been complied with, because the conditions, if interpreted literally, did not mean what the council claimed they meant; (ii) pursuant to the two aforementioned House of Lords cases, were a restraint of trade; and (iii) they were otherwise unnecessary and unreasonable.  The District Judge did not accept these arguments and held that Newcastle City Council was entitled to impose the conditions and that they meant what the council said they meant.
As this is a decision of magistrates’ court, albeit one made by a legally qualified District Judge, it does not establish a legal precedent.  Indeed, if an identical case were to come before the same District Judge he is not even bound to decide that other case in the same way he decided this case.  Strictly speaking, the judgment applies to only Newcastle City Council and Blue Line Taxis (Newcastle) Ltd (and not any other Newcastle licensed private hire operator).  For the time being, Blue Line Taxis (Newcastle) Ltd can continue using a common telephone number, because they (and Newcastle City Council) have 21 days in which to appeal and, if they appeal, the conditions would not become enforceable until the conclusion of any such appeal process.
If, however, the matter is pursued by either or both parties to the Divisional Court of the High Court, the ruling of the Divisional Court will not only be binding on the lower courts – magistrates’ courts and the crown court – but also upon itself.  And whilst I’m sure many would like to know whether there is to be an appeal, unfortunately I am currently unable to make public comment.
If nothing else, this case demonstrates that one cannot rely solely upon their knowledge of a narrow area of law, such as road passenger transport, but a need to have a much broader legal knowledge!

Tagged as: berwick, Blueline Taxis, court cases, david wilson, hackney carriages, Licensing, taxi conditions