Simmonds v Guildford Borough Council€¦ · Web viewCar colour and risk of car crash injury Population based case control study in BMJ (online) · January 200476

18th October2016

Simmonds v Guildford Borough Council

Bundle for hearing

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Benn Michael Simmonds v Guildford Borough Council

Argument........................................................................................................................................................... 4

Council livery licence condition................................................................................................................................8

Appellants objections to hackney carriage livery condition................................................................................10

Ease of identification of vehicles for members of the public..................................................................................10

Identification for enforcement...............................................................................................................................10

Public Safety and security......................................................................................................................................10

Increases trade......................................................................................................................................................11

Helps professionalise the service...........................................................................................................................11

Image....................................................................................................................................................................11

Costs to the Appellant...........................................................................................................................................11

Appellants objection to Private Hire vehicle door livery.....................................................................................14

Appellants objection to 1400 cc engine size private hire vehicle condition.........................................................16

Cases referred to............................................................................................................................................... 17

City & County of Swansea v Jeffery David John Davies [2000] EWHC J0616-3.......................................................17

Durham City Council vs. Fets (2005)......................................................................................................................26

Stockport MBC v Kenneth J Eyles (Livery)..............................................................................................................31

Stockport MBC v Kenneth J Eyles(costs)................................................................................................................36

D.C.Parsons -v- South Kesteven District Council re Taxi meter..............................................................................38

Southampton City Council v May (Camera in taxi)................................................................................................41

Illustrations....................................................................................................................................................... 52Green liveried taxi demonstrator without top sign................................................................................................52

Private Hire Vehicle liveried door sign...................................................................................................................52

Witness Statements.......................................................................................................................................... 53

Witness statement David Williams-Wynn.............................................................................................................53

Witness statement Mark Guy Rostron...................................................................................................................54

Witness statement Paul Soper...............................................................................................................................55Paul Sopers damage repair estimate.................................................................................................................57Do not use Surrey Vinyl Wraps!.........................................................................................................................59Do not use Surrey Vinyl Wraps! Pictures of damage.........................................................................................61Pauls Soper’s damage repair estimate for roof lining, not including repairing paintwork.................................64Paul Soper’s emails to GBC................................................................................................................................65

Witness statement of Benn Simmonds..................................................................................................................68

Emails from Respondent re costs to Mr Simmonds...............................................................................................70

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Car colour and risk of car crash injury Population based case control study in BMJ (online) · January 2004........76

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IN THE GUILDFORD CROWN COURT

BETWEEN:-

BENN MICHAEL SIMMONDS

Appellant

-and-

GUILDFORD BOROUGH COUNCIL

Respondent

INTRODUCTION

This is an appeal to the Crown Court about:

Surrey Magistrate’s refusal on 5th July 2016 to allow my appeal under section 47 and 48 of the Local Government Miscellaneous Provisions Act 1976 against Guildford Borough Council’s hackney carriage vehicle licencing conditions that:

1 The Appellant’s hackney carriage be clad in green plastic livery, and

2 That private hire vehicles licenced by Guildford Borough Council have permanent livery on their front doors, and

3 That vehicles licenced for hire by Guildford Borough Council have engine capacities of 1400 cc or more, and

4 The Magistrates order to award £6,000 costs to Guildford Borough Council against the Appellant.

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Argument

1. This appeal is against the Surrey Magistrates decisions not to allow the said Appellants objections to GBC hackney carriage licencing conditions and the associated award of costs against him. The Appellant asks the Court:

a. to order GBC not to impose the said hackney carriage conditions on his hackney carriage licence and not to impose the said private hire vehicle licence conditions on any private hire vehicle.

b. to award the Appellant all his costs of this appeal and the previous hearings in the Magistrates Court.

2. The Appellant has the right to appeal to the Crown Court against the Magistrates decisions under LGMPA 1976 section 77 Appeals, where:

a. (1)Sections 300 to 302 of the Act of 1936, which relate to appeals, shall have effect as if this Part of this Act were part of that Act.

b. (2)If any requirement, refusal or other decision of a district council against which a right of appeal is conferred by this Act—

c. (a)involves the execution of any work or the taking of any action; or

d. (b)makes it unlawful for any person to carry on a business which he was lawfully carrying on up to the time of the requirement, refusal or decision;

e. then, until the time for appealing has expired, or, when an appeal is lodged, until the appeal is disposed of or withdrawn or fails for want of prosecution—

f. (i)no proceedings shall be taken in respect of any failure to execute the work, or take the action; and

g. (ii)that person may carry on that business.

3. And the Public Health Act 1936:

a. 301 Appeals to quarter sessions against decisions of justices

b. Subject as hereinafter provided, where a person aggrieved by any order, determination or other decision of a court of summary jurisdiction under this Act is not by any other enactment authorised to appeal to [F1the Crown Court] he may appeal to such a court:

c. 302 Effect of decision of court upon an appeal

d. Where upon an appeal under this Act a court varies or reverses any decision of a council, it shall be the duty of the council to give effect to the order of the court and, in particular, to grant or issue any necessary consent, certificate or other document, and to make any necessary entry in any register.

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4. The Appellant contends that he was inadequately represented by Council in the Magistrates Court and that his Council ignored both his instructions and the original complaint made to the Magistrates by the Appellant.

5. Neither the Magistrates nor Council for either party addressed the Appellant’s original complaint or heard his grievances. Thereby breaching the Appellants right under Article 6 that in the determination of his civil rights and obligations (he) is entitled to a fair… hearing. By any standards the Appellant did not get a fair hearing.

6. On 26th January 2015 at Redhill Magistrates, another hackney carriage proprietor in Guildford, Mr David Williams-Wynn applied to object to the Respondents licence conditions for livery. He was unrepresented, and was advised by the magistrates and their clerk that he could not object to the livery condition because it didn’t yet apply to him as the respondents had given existing hackney carriage drivers 2 years ending in December 2017 to have their cars liveried.

7. During December 2015 and January 2016 Appellant tried to get his new car licenced.8. The Respondent wrote to the Appellant:

we agreed to assist you and accept your application at this time and issue you a plate once the vehicle is liveried at a later date, rather than reject your application in its entirety until the vehicle is liveried and risk you not being able to licence the vehicle at all due to its age.

9. The Appellant was effectively forced to have his car liveried before the ongoing appeal by another driver was decided and before he could bring his own appeal.

10. The Respondent have never paused their insistence on livery whilst appeals are being decided, although section 77 of the LGMP Act 1976 suggests they do.

11. It appears to be the position of the Respondents, the Magistrates Court, and the Counsel involved in this matter, that no driver can appeal against an unreasonable or unnecessary licence condition, either before or after the event. And that hackney carriage drivers being denied a remedy to unreasonable or unnecessary licence conditions can be denied their human right to a remedy and a fair hearing.

12. In a reported Crown Court case (Southampton City Council v Kevin May) the Judge said:

a. 14. While the appeal could equally have been heard by justices from any area, if anything, it is arguable that the independence of justices from outside Southampton could be a positive advantage when dealing with a case which concerns the policy of the Southampton City Council, in that it could add to the perception of fairness.

13. The Appellant contends that Surrey Magistrates and their clerks have been partial to the Respondents in this case as the Respondents are a licencing authority in the Magistrates area and there would be a likelihood that the personnel involved know each other and are influenced by each other in favour of the Respondents, or at least the possibility or appearance of such partiality.

14. Surrey Magistrates and their clerks and both sets of Council have gone out of their way to avoid addressing the issues raised by the Appellant in his original complaint under sections 47 and 48 of the LGMPA 1976.

15. They have consistently misdirected themselves that this was a complaint against Respondents policy and as such only challengable by Judicial Review in the High Court.

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Completely disregarding Appellants right by Act of Parliament to object to the hackney carriage licence condition in the Magistrates Court and subsequently in the Crown Court.

16. At the initial hearing in Redhill a Magistrates or clerk was heard to say that several of these livery cases had already been decided. This shows prejudice as it appears they had been advised of this by the Respondent outside the judicial process and the assertion was in any case was wrong in fact.

17. The Appellant put himself forward to object to the licence conditions, because a previous taxi driver applicant had been refused a hearing by Surrey Magistrates and their clerk on the mistaken belief that he didn’t have standing because his vehicle was not required to be liveried till December 2017.

18. Every decision the Surrey Magistrates have made except one have shown partiality in favour of the Respondent and they should not be allowed to rule further on these matters because to allow that would be contrary to the Human Rights Act, Article 6 right to a fair trial.

19. Council for the Respondents mistakenly maintains that the Appellant is raising new issues when in fact the Appellant is merely asking that the issues he first raised by complaint are addressed properly as they had not previously been addressed at all.

20. Respondents argument and bundle does not address sections 47 and 48 of the LGMPA 1976 at all.

21. Respondents skeleton argument objects that Appellant is raising new arguments, but Judge Stewart Patterson ruled in Crown Court case Southampton City Council v Kevin May that:

a. 28 We find that we should treat this as a re-hearing de novo. It would be artificial to do otherwise. …. The purpose of this appeal is to put right any erroneous decision of the Court below by hearing the matter afresh.

b. 29. As a result neither the evidence nor the issues are restricted to the points raised in the Magistrates’ Court.

22. The Appellant is a licenced Guildford hackney carriage driver and hackney carriage proprietor and as such has standing to object to vehicle licencing conditions under sections 47 and 48 of the Act. (see The Appellant a licenced hackney carriage proprietor and driver has standing in this appeal as decided in City & County of Swansea v Jeffery David John Davies [2000] EWHC J0616-3

a. 25. I return to the question which the justices have raised for the opinion of the High Court:

b. "Can the Respondent in this case, a hackney carriage vehicle licence holder be a 'person aggrieved' by a condition imposed on a private hire vehicle licence for the purposes of an appeal on section 48(7) of the Local Government (Miscellaneous Provisions) Act 1976."

c. 26. I answer that question in the affirmative. Mr Justice Mumby

23. Redhill Magistrates have already decided at the second hearing that the above mentioned requirements are hackney carriage and private hire vehicle licence conditions.

24. The Appellant concedes that as a general rule the Respondent is able to set licencing policies as they wish subject to Wednesbury reasonableness.

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25. Hoewever, Parliament has made special provisions in the LGMPA 1976 to protect against the imposition of unreasonable or unnecessary licence conditions on Hackney Carriage and Private Hire Vehicles in sections 47 and 48 of the Act.

26. Furthermore, the Respondent cannot enforce unnecessary or disproportionate conditions on licencees’ property in their cars as this is contrary to the Human Rights Act 1998, The First Protocol, Article 1, Protection of property:

a. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

b. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

27. The hackney carriage and the licence are the property, or possessions of the Appellant within the scope of Article 1. The Respondent has interfered with that vehicle and licence by imposing unnecessary and disproportionate licence conditions that are not reasonably necessary contrary to the Act.

28. The Respondent has provided a number of cases which are authorities on various licencing matters.

29. However, none of the authorities cited by the Respondent are about licencing hackney carriage or private hire vehicles. None of the cases cited mention sections 47 and 48 of the Local Government Miscellaneous Provisions Act 1976 which deal with objections to vehicle licencing and so those judgements could not have considered the effect of sections 47 and 48 of the LGMPA 1976.

30. The licencing law should be applied equally as a matter of good public policy, and that includes decisions made in the Crown Court. Although Crown Court decisions are not binding precedents, they are suggestive. In fact they are probably more than that, as by definition most of the appeals under sections 47 and 48 are decided on appeal in the Crown Court. I am not aware of any appeals to a higher court in this connection.

31. In Durham City Council v Fets at Newcastle Crown Court the Judge decided in very similar circumstances to allow a taxi drivers appeal against Durham City Councils attempt to enforce a condition that all taxis in Durham be white. The Judge ruled that the condition was not reasonably necessary. This is a suggestive decision, but this Court should have good reason to depart from its thrust.

32. There are several other reported Crown Court cases which similarly suggest that Councils cannot enforce taxi licence conditions that are not reasonably necessary, including Stockport MBC -V- Kenneth J Eyles where the Judge found that the Council licence conditions breached both the taxi owners Human Rights and also the terms of section 47 of the LGMPA 1976 because the licence condition was not reasonably necessary. Both are reinforced by D.C.Parsons v. South Kesteven District Council.

33. There is precedent that a hackney carriage driver did successfully object to council private hire livery in a High Court ruling in City & County of Swansea v Jeffery David John Davies [2000] EWHC J0616-3. Mr Justice Munby says:

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a. 25. I return to the question which the justices have raised for the opinion of the High Court:

b. "Can the Respondent in this case, a hackney carriage vehicle licence holder be a 'person aggrieved' by a condition imposed on a private hire vehicle licence for the purposes of an appeal on section 48(7) of the Local Government (Miscellaneous Provisions) Act 1976."

c. 26. I answer that question in the affirmative.

d. 27. (Appeal dismissed; order as to costs)

34. That case also approved the definition of aggrieved in Halsbury's Laws in England, Volume 1(1), paragraph 56:

a. "The meaning of a 'person aggrieved' may vary according to the context, but a person will not be held to be aggrieved by a decision if that decision is not materially adverse to him or if the tribunal to which he seeks to appeal has no jurisdiction to find in his favour. Nor, in general, is it enough for a person to show that he is dissatisfied with the order made or that his interests are likely to be prejudiced by the outcome. He is normally required to establish that he has been denied of deprived of something to which he is legally entitled, or that the decision has imposed a legal burden on him, or that (as in the case of a licensing decision against which a right of appeal is provided by statute) the adverse impact of the decision on his interests is so direct that he must be regarded as falling within the statutory category of persons aggrieved by it. In some contexts, however, the expression has been interpreted more broadly to include persons objecting to a licensing application that has been granted, and other persons who have a substantial grievance in respect of an order, proposal or decision prejudicially affecting their interests but not encroaching directly upon them."

35. The Respondent has to show that they had good reason, that is that they had good evidence to support the reasons they gave for imposing the licence conditions objected to, but the Respondent have provided no such evidence.

36. There have never been any passenger safety problems with taxis in Guildford.37. The Respondents were never asked what evidence they had to show that they believed the

livery conditions were reasonably necessary for public safety or the public good, or indeed any of their other conditions.

38. In fact the reasons given by the Respondent all appear to be contradicted by the available evidence as follows;

Council livery licence condition

39. The Council’s stated primary aim of the taxi licence condition “is to protect the public by setting minimum standards for drivers and vehicles. (So) the public can be confident that if they use a taxi or private hire vehicle that the driver and vehicle meet these standards.”

40. But on the contrary, there is no evidence that Guildford Council’s proposals to livery the taxis in green wrap will help to protect public safety in any way.

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41. The Respondent initially relied on the child sexual exploitation events in Rotherham as examples of the type of things that could be prevented by liverying vehicles.

42. It was pointed out to the Respondents that Rotherham taxis were already liveried, and that had not prevented the abuse from occurring.

43. The Rotherham report on child sexual exploitation and taxi drivers didn't recommend liveried taxis. In Rotherham the problem wasn’t the taxis, it was the drivers and the failure of the Council and Police to do their jobs properly.

44. The evidence in Rotherham was that the victims already new perfectly well that the vehicles they were getting into were taxis and that they did everything possible to avoid getting into them.

45. Councillor Ellwood of the respondents has on every occasion sought to rely on the Rotherham example whilst knowing it to be irrelevent.

46. Respondents have been unable to provide any evidence that green coloured taxis make the public safer.

47. The Guildford Council’s reasons for livery were further set out as follows:

a. Improves Identification: Vehicles are clearly identifiable as a taxib. Safety and security: Customers can be confident that the taxi is properly licensed

and meets the necessary safety standards. This is particularly important to women and to vulnerable clients.

c. Increases trade: It can improve customer confidence and customers are happier to hail a liveried taxi rather than take a chance on an un-liveried one.

d. Creates local identity: A local livery creates a strong local identity, which in the case of cities like London and New York becomes one that is recognized across the world.

e. Helps professionalise the service: A local livery coupled with clear driver training and vehicle standards helps to create a more professional service.

f. Enables easier enforcement: Taxi drivers raise regular concern about the loss of trade to alleged touting by private hire vehicles and to taxi vehicles licensed by other Boroughs. A clear and identifiable livery makes enforcement much easier.

48. But none of these alleged reasons for the licence conditions were supported by any evidence.

49.

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Appellants objections to hackney carriage livery condition

Ease of identification of vehicles for members of the public

50. All the purported benefits which are said to arise from the livery wrapping requirement, already abide within the current livery requirements. All licensed taxis within Guildford display Guildford Borough Council’s logo and have a large sign bearing the word “TAXI” which is also illuminated at night. There is therefore no warrant for the suggestion that any member of the travelling public is misled by the lack of a full body wrap livery. As such, the requirement has no rational connection to the stated aim of the licence condition, at paragraph 2.5, which is to improve public safety.

51. Few of those members of the public who replied to the Respondents consultation could demonstrate a satisfactory level of understanding of the difference between Hackney Carriage vehicles and a Private Hire vehicle. There is no evidence that the Respondents livery licence condition will have any or any significant effect on the public's body of knowledge as to the legal differences between a Hackney Carriage and a Private Hire vehicle.

52. The Council claim that a uniform livery is the most potent way of ensuring clear identification, however easy identification of taxis is by the taxi signage and Guildford logo, which is already present on a Guildford taxi. The City Council has not produced any evidence at all to show that the public have any difficulty in recognising a Guildford Hackney Carriage.

Identification for enforcement

53. There is no evidence of any enforcement or identification problem with regard to Guildford Hackney Carriages.

54. If there were a problem with a taxi, the uniform full body wrap of Guildford Teal would make identification harder, as the public would not be able to differentiate by colour when asked to describe a vehicle. They could only describe it as green, and not black or blue or red etc.

55. Taxis in Guildford already have a very large top sign with the word TAXI prominently displayed, and illuminated at night.

56. As part of the police’s vehicle database, the Appellant’s car registration is linked to the make, model and colour of his vehicle. If the police do a registration number check they may stop him and ask questions regarding the colour. He will lose time and money having to demonstrate that the vinyl is temporary and not the true colour.

Public Safety and security

57. Livery is not necessary to protect the public. The taxis used during the Rotherham Child Sexual Exploitation period which Guildford Council particularly said they wanted to avoid were already liveried white.

58. There is no evidence that public can’t recognize a Guildford taxi.

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59. Taxis in Guildford already have a very large top sign with the word TAXI prominently displayed, and illuminated at night.

60. The Respondents claim that by introducing the livery licence condition it makes it less likely that unlicensed vehicles can be passed off as Hackney Cabs, therefore not only protecting the public but in consequence encourage more of the general public to use taxis. There is no evidence to suggest that there is a passing off problem by unlicenced vehicles in Guildford.

61. According to an academic study, “Car colour and risk of car crash injury: population based62. case control study” by S Furness, J Connor, E Robinson, R Norton, S Ameratunga, R Jackson,

published in the British Medical Journal BMJ online January 2001, green coloured vehicles are twice as likely as silver coloured vehicles to be involved in an accident. The Respondents green livery condition makes both the public and drivers less safe.

63. The Guildford disabled association wanted yellow as the livery colour but were overruled by the Respondents Councillors for unspecified reasons.

Increases trade

64. There is no evidence that a liveried taxi can improve customer confidence and that customers are happier to hail a liveried taxi rather than take a chance on an un-liveried one. The passengers surveyed were very happy with the quality of Guildford Hackney Carriage drivers.

65. The colour of a taxi, as such, will not encourage a person to use a taxi if they otherwise would not have done so.

66. In fact Appellant has evidence that the public avoid Guildford green liveried taxis because they think they are GBC vehicles and not taxis. The public walk past liveried vehicles to get into unliveried ones. The public waiting for passing taxis fail to flag down Guildford green liveried ones waiting instead to flag down non liveried ones.

Helps professionalise the service

67. There is no evidence that a full body wrap livery helps to create a more professional or safer service. Indeed, taxis in Rotherham, where taxi drivers were involved in Child Sexual Abuse, which this Council specifically seeks to prevent by liverying Guildford taxis, were already liveried in all white. The fact that Rotherham taxis were liveried white did not do anything to protect the people of Rotherham from child sexual exploitation by Rotherham taxi drivers.

Image

68. There is no evidence that liveried taxis will have a raised profile on the streets and encourage the public to use them more as part of an overall Public Transport Provision. Taxis in Guildford already have a very large top sign with the word TAXI prominently displayed, and illuminated at night. In fact the evidence is that the public are less likely to use taxis liveried in Guildford green.

Costs to the Appellant

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69. The Respondents have neglected to do a realistic assessment of the initial and ongoing costs to the Appellant of having his vehicle liveried.

a. The estimated ongoing net cost of the GBC taxi initial wrap is approximately £1000 for a saloon and up to £1800 for larger vehicles.

b. The estimated cost of lost time off work to have the livery done, 2 to 3 days, at the expense of the Appellant at the average annual income before tax of £28000 of a Guildford taxi driver is £108, so the lost time for every liverying event is £216 to £324.

c. The cost of lost time off work to have the livery repaired is half a days wage each time £50 plus £20 for repairing a small panel.

d. As the wrap material is only guaranteed for two years there can reasonably be estimated to cost of half a full wrap and time off work every 2 years, from £700 to £1200.

e. The cost of having the livery removed on disposal of a saloon car is £400 to £500. f. The Respondent has denied the Appellant access to their livery demonstration

vehicle to examine the effects of livery wrap on the vehicle on decommissioning.g. The cost of any damage to vehicle paintwork due to the adhesion of the livery. h. The cost of damage to the vehicle when the livery is fitted.

70. In any event, the comparative benefits of less costly alternatives are not explored. For example, we understand Brighton & Hove (an authority upon which the Council relies in respect of livery licence condition) does not require wrapping of vehicles, rather it requires vehicles to be white and then coloured transfers to be affixed. Such an approach has an identical outcome to a wrapped vehicle in terms of the benefits identified, but is considerably less onerous on the trade.

71. The Respondent has wrongly maintained that the existing taxi fare structure compensates the hackney carriage drivers for the livery costs, when in fact no such claim was made by the Respondents when the fares were last reviewed and no such cost was included in the fare calculation formula adopted by the Respondents.

72. The Respondents claim that the livery wrap will last 10 years is false, so their claim that their proposed future fare structure will compensate drivers by allowing them one tenth of the net cost each year is unfounded.

73. The wrap on the lateral surfaces of the wrapped vehicles is only guaranteed for 2 years by the suppliers not 10 years.

74. The Respondent has never considered any of the costs of damage on fitting and removal of the wrap, or because of its innate unsuitability as a covering for taxi vehicles, or for door livery on private hire vehicles.

75. These proposals will put an unnecessary financial burden on financially hard pressed Appellant and because his taxi costs are compensated by fares set by a formula ultimately the travelling public will pay for the cost of livery.

76. The Appellants’ taxi cannot be used for chauffer work and weddings thus reducing his earnings again.

77. The Appellant can afford only one car for work and private and would lose the use of the liveried car for private purposes as the livery is unsightly.

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78. The Appellant has in his insurance policy a clause that in the event of a non-fault accident, he is provided with a temporary taxi vehicle.

79. If the Appellant’s taxi is off the road for repairs he will not be able to licence a temporary vehicle unless it is wrapped in Guildford livery at a cost of £1000 or more.

80. If the Appellant’s vehicle is off the road for repairs for 2 to 3 weeks the insurance companies find it unviable to wrap a car for this short amount of time. The Appellant again through no fault of his own would be without taxi earnings.

81. The Respondent has made no estimate at all for the initial and ongoing costs of full passenger door livery for private hire vehicles.

82. It is likely that drivers will take their prestige cars off the rank and replace them with the lowest cost and quality alternative thus losing taxi rank work to better quality private hire cars.

83. There is evidence that the Guildford green vinyl livery is a colour and material that will deteriorate quickly, both of itself and in bad weather and due to accidental damage and wear and tear.

84. Hackney carriage proprietor Paul Soper has evidence of serious damage caused to his and another car during the fitting of the livery cladding and that the effect of the livery cladding is to invalidate the manufacturers paintwork warranty unless areas of the car are repainted.

85.

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Appellants objection to Private Hire vehicle door livery

86. The door livery condition was not reasonably necessary as required by the LGMPA 1976 section 48(2), and the licensing of private hire vehicles with door livery is contrary to the Act in the following respects:

a. (1)Subject to the provisions of this Part of this Act, a district council may on the receipt of an application from the proprietor of any vehicle for the grant in respect of such vehicle of a licence to use the vehicle as a private hire vehicle, grant in respect thereof a vehicle licence:

b. Provided that a district council shall not grant such a licence unless they are satisfied—

c. (a)that the vehicle is—

d. (i)suitable in type, size and design for use as a private hire vehicle;

e. (ii)not of such design and appearance as to lead any person to believe that the vehicle is a hackney carriage;

87. And is likely to be viewed by the public as simply a vehicle for hire without any formalities.

88. The Council’s primary stated aim of the taxi licence condition is to protect the public by setting minimum standards for drivers and vehicles. (SO) the public can be confident that if they use a taxi or private hire vehicle that the driver and vehicle meet these standards.

89. But there is no evidence that Guildford Council’s proposals for private hire vehicle livery will help to protect public safety, and there is no evidence of a public safety problem with Guildford private hire services.

90. As taxis are already clearly distinguishable from private hire vehicles because of the taxi’s top sign with the word taxi upon it. The Council’s requirements are not reasonably necessary.

91. The Appellant contends that-

92. He would be materially affected because the condition would lead to confusion among members of the public between private hire vehicles and hackney carriages. The private hire door signage gives the impression that private hire vehicles were hackney carriages.

93. The Respondent had undertaken a consultation process with Guildford Hackney Carriage proprietors and drivers, and by doing so had accepted that its members were interested parties and were a group of people who could be aggrieved by any decision made.

94. The 1976 Act did not define the meaning of 'person aggrieved' and that the meaning would vary according to the context and in this sense ought to be construed widely.

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95. In the normal meaning of 'aggrieved' the Appellant was personally aggrieved by the condition and so were many other hackney carriage drivers.

96. The existence of a statutory right of appeal make judicial review proceedings inappropriate because judicial review should normally only be pursued when other avenues of appeal had been exhausted.

97. Similar proposals have been rejected by Transport for London because they will in fact lead to customer’s confusion about whether they can get into a private hire vehicle without prior booking. Transport for London concluded that their private hire vehicles would only have a small logo on the rear of the vehicle to prevent the public mistaking them for a vehicle for public hire.

98. According to the Respondents Vector report produced as part of the livery consultation excercise, touting and plying for hire by Private Hire Vehicles is seen as a problem in Guildford, and the additional private hire full front door livery will make it more likely that hire touting will occur.

99. The report also states that responders did not know the legal difference between a Taxi and a Private Hire vehicle so adding livery to private hire vehicles will make it more likely that the public will try to illegally hire an un-booked private hire vehicle on the street as the majority of the public see both kinds of vehicles as capable of being hired on the street, contrary to the law.

100. The Vector report for the Respondent is evidence that an enforcement problem exists with regard to Guildford private hire vehicles and drivers. That is because the Respondent refuse to enforce the bye laws against touting and soliciting. The problem is made worse by the existing door signs on private hire vehicles, that tempt people into trying to hire them. The ease of identification of private hire vehicles as available for hire will be made worse by the Councils private hire livery proposals.

101. Cost of private hire door livery.

102. Although the cost of the front passenger door for private hire vehicles is only £10, there is evidence that private hire drivers with prestige cars will lose income from their chauffer work if they are forced to have livery on their car doors.

103. There is evidence that….. Include Surrey Cars letter to GBC

104. The Council’s proposals are expensive and unnecessary and disproportionate and will have the opposite effect to that intended.

105.

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Appellants objection to 1400 cc engine size private hire vehicle condition

106. Contrary to section 48 Licensing of private hire vehicles.

a. a district council shall not grant such a licence unless they are satisfied—

b. (a)that the vehicle is—

c. (i)suitable in type, size and design for use as a private hire vehicle;

d. (ii)not of such design and appearance as to lead any person to believe that the vehicle is a hackney carriage;

e. (iii)in a suitable mechanical condition;

f. (iv)safe;

107. The Appellant contends that the Respondent has done no safety assessment whatsoever as to the suitability of vehicles with engine sizes as small as 1400cc, and that:

108. The average power and acceleration of cars has increased over the last few decades, not decreased. The average traffic density and speed at junctions and roundabouts has also increased.

109. Engine capacity is not the proper measure of suitable power available for safely joining fast moving traffic flows such as the uphill access to the A3 at Dennis’s roundabout in Guildford, or the access to the A3 at Tesco’s slip, and at many other dangerous junctions where an underpowered car with up to 5 adults on board will not be able to safely join traffic streams.

110. The correct measure is that of the engines torque and the vehicles fully loaded power to weight ratio and the Respondents have made no attempt to assess those.

111. The Respondents are putting drivers and the public in danger by ignoring this safety matter.

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Cases referred toCity & County of Swansea v Jeffery David John Davies [2000] EWHC J0616-3

Official Judgment [2000] EWHC J0616-3 1 [2000] EWHC J0616-3

CO 1936/99

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice

Strand

London WC2

Friday, 16th June 2000

Before:

Mr Justice Munby

City & County of Swansea v Jeffery David John Davies

(Computer-aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 180 Fleet Street, London EC4A 2HD Telephone No: 0171-421 4040/0171-404 1400 Fax No: 0171831 8838 Official Shorthand Writers to the Court)

MR P THOMAS (instructed by Legal & Committee Services, Swansea SA1 3SN) appeared on behalf of the Applicant.

MR P MADDOX (instructed by Kearns & Co Swansea SA1 4DQ) appeared on behalf of the Respondent.

JUDGMENT

(APPROVED)

Friday, 16 June 2000

JUDGMENT 1. MR JUSTICE MUNBY: This is an appeal by the City and County of Swansea by way of a

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Case Stated dated 26th August 1999 from a decision of the Justices of West Glamorgan on 10th June 1999 holding on a preliminary point that the respondent, Jeffrey David John Davies, was a “person aggrieved” within the meaning of section 48(7) of the Local Government (Miscellaneous Provisions) Act 1976 ("the Act").

2. The matter arises in this way. Section 48 of the Act, so far as materials for present purposes, provides as follows:

"(1) Subject to the provisions of this Part of this Act, a district council may on the receipt of an application from the proprietor of any vehicle for the grant in respect of such vehicle of a licence to use the vehicle as a private hire vehicle, grant in respect thereof a vehicle licence: Provided that a district council shall not grant such a licence unless they are satisfied—

(a) that the vehicle is—

(i) suitable in type, size and for use as a private hire vehicle;

(ii) not of such design and appearance as to lead any person to believe that the vehicle is a hackney carriage;

[2000] EWHC J0616-3 2

(iii) in a suitable mechanical condition;

(iv) safe; and

(v) comfortable;…

(2) A district council may attach to the grant of a licence under this section such conditions as they may consider reasonably necessary including, without prejudice to the generality of the foregoing provisions of this subsection, conditions requiring or prohibiting the display of signs on or from the vehicle to which the licence relates. …

(7) Any person aggrieved by the refusal of a district council to grant a vehicle licence under this section, or by any conditions specified in such a licence, may appeal to a magistrates’ court."

3. On 10th September 1998 there was a meeting of the appellant's Licensing and Prosecutions Sub-Committee. It will be convenient if I quote part of the minutes of that meeting:

"The Director of Environmental Health and Trading Standards reported. He outlined the background to the issue and indicated that following consultation with the trade, agreement has now been reached regarding proposed sign to be placed on vehicles."…

"Mr J. Hill (Solicitor) on behalf of the Private Hire Trade outlined his clients’ views on the signage and the rationale supporting its implementation and introduction. He also indicated that following the vehicle inspection the preferred positioning of the sign would be the top right of the windscreen.

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Mr K. Jeffries (Solicitor) on behalf of the Swansea Taxi Owners Association outlined his clients' opposition to the proposed sign due to the fact that it would cause confusion between Hackneys and Private Hire Vehicles, possibility of glare from the light being forced into oncoming traffic, and the sign is at odds with current law and statute.

He also indicated that in his opinion the S.T.O.A. had not been given opportunity to comment on the proposals.

Mr J. Hill further outlined the case in support of the proposal and indicated that the future policy that all Private Hire Vehicles be coloured white will eliminate the confusion between Black Hackney Carriages and Private Hire Vehicles. …

The Director then outlined to Members the current Council policy on Hackney Carriage/Private Hire Vehicles relating to new applications/renewals, and explained the consultation process that had taken place with respect to signage.

He indicated that signage had been discussed at previous meetings of the Subcommittee and the Taxi Consultative Panel, when both the Hackney Carriage and Private Hire Trade were allowed the opportunity to put their views.

The Head of Legal and Committee Services outlined to Members the legal issues relating to the proposals. He referred to the fact that the consultation has been undertaken at the Taxi Consultative Panel and both sides have been given the opportunity to put their views forward at the current meeting. He stated that the law states that an Authority can attach conditions as they see fit as long as they do not lead to confusion between Hackneys/Private Hire Vehicles."

4. In the event the Committee resolved as follows, that:

"(i) the design and location as outlined at the Sub-Committee i.e. top right hand corner, (passenger side) illuminated-front, top left hand corner (passenger side) not illuminated-rear, (location as viewed externally from the front and rear of the vehicle) of the signs referred to in the report be approved for use in all private hire vehicles licensed by the City and County of Swansea and that the word 'taxi' should not be included on such signs;

(ii) all existing Private Hire Vehicles be fitted with these signs by the 1st April 1999;

(iii) all new Private Hire Vehicles be fitted with these signs prior to licensing from 1st November, 1998."

5. As is apparent, the matter has become the subject of some controversy as between the Private Hire trade and the Hackney Carriage trade. The respondent is the holder of a Hackney Carriage licence and was concerned to challenge the decision of the Licensing and Prosecutions Sub Committee. He sought to appeal to the Justices pursuant to section 48(7) claiming to be a "person aggrieved". The appellant took the preliminary point that the respondent is not a "person aggrieved" as claimed and therefore not entitled to appeal.

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6. I can pick up the story from the case stated:

"3. We heard the appeal on the 10th day of June 1999 and the following facts were found or agreed-

a. Section 48(2) of the Local Government (Miscellaneous Provisions) Act 1976 ("the 1976 Act") provides that 'A district council may attach to the grant of a licence under this section such conditions as they may consider reasonably necessary including, without prejudice to the generality of the foregoing provisions of this subsection, conditions requiring or prohibiting the display of signs on or from the vehicle to which the licence relates.'

b. By section 48(7) of the 1976 Act 'Any person aggrieved by the refusal of a

district council to grant a vehicle licence under this section or by any conditions specified in such a licence, may appeal to a magistrates' court.'

c. By a decision of the Licensing and Prosecutions Sub-Committee of the City and County of Swansea made on the 10th day of September 1998 it was resolved that, as of the 1st day of November 1998, in respect of all new private hire vehicles, and the 1st day of April 1999 in respect of all existing private hire vehicles, all private hire vehicles would be required to display signs identifying the name and telephone number of the company under which the vehicle operated together with a statement 'pre-booked fares only'. The signs would be 37 cm x 10 cm, illuminated and displayed in the top right hand corner of the front windscreen and on the rear windscreen not illuminated and displayed in the top left hand corner. The word 'Taxi’ should not be included on the signs.

d. The requirement to display the signs had been enforced by the City and County of Swansea by the imposition of conditions on all private hire vehicle licences in exercise of its powers under section 48 of the 1976 Act.

e. No private hire vehicle licence holder had appealed the imposition of such a condition.

f. This particular condition relating to signage had not been imposed on any hackney carriage vehicle licences.

g. The resolution to require the signage had been taken after consultation with hackney carriage and private hire vehicle licence holders

h. Jeffrey David John Davies is the holder of a hackney carriage vehicle licence issued by the City and Council of Swansea. He does not hold a private hire vehicle licence.

4. As a preliminary point it was argued by the City and County of Swansea that Jeffrey David John Davies did not have locus standi to bring the appeal as he was not a "person aggrieved" with the meaning of section 48(7) of the 1976 Act.

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5. The City and County of Swansea contended that-

a. The meaning of "person aggrieved" varied according to the statutory context but in general it was not enough for a person to show that he was dissatisfied or that his interests were likely to be prejudiced by the outcome.

b. The respondent needed to establish that he had been denied, or deprived of something, to which he was legally entitled, or that the decision had imposed a legal burden on him, or the adverse impact of the decision on his interests was so direct that he must be regarded as falling within the statutory category of persons aggrieved by it.

c. The condition was not directly adverse to hackney carriage licences. The respondent, at best, could only say that the condition might have the indirect direct effect of encouraging 'touting’ by private hire vehicle drivers, such touting not being allowed and which argument was not sufficient.

d. The condition had not been imposed upon hackney carriage licences and consequently no legal burden had been imposed upon hackney carriages.

e. Hackney carriages had not been deprived of something to which they were legally entitled.

f. The respondent was not a person aggrieved for the purposes of section 48(7) of the 1976 Act and the Magistrates’ Court therefore had no jurisdiction to hear the appeal.

6. Jeffrey David John Davies contended that-

a. The respondent would be materially affected because the condition would lead to confusion among members of the public between private hire vehicles and hackney carriages. The signage gave the impression that private hire vehicles were hackney carriages. Such confusion would directly and materially affect the respondent.

b. The City and County of Swansea had undertaken a consultation process with the Swansea Taxi Owners Association and by doing so had accepted that its members were interested parties and were a group of people who could be aggrieved by any decision made.

c. The 1976 Act did not define the meaning of 'person aggrieved’ and that the meaning would vary according to the context and in this sense ought to be construed widely.

d. In the normal meaning of 'aggrieved’ Jeffrey David John Davies was personally aggrieved by the condition and so were many other hackney carriage drivers.

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e. The existence of a statutory right of appeal would make judicial review proceedings inappropriate because judicial review should normally only be pursued when other avenues of appeal had been exhausted."

7. The Justices explained their decision that the respondent was a "person aggrieved" as follows:

"10. Our clerk advised us that the meaning of 'person aggrieved' could vary according to context and there would be clear cases where persons came within the definition and clear cases where persons did not but there would also be a range of cases where the decision was not so clear. It was for us to set the boundary having regard to the legal principles summarised in Halsbury’s Laws. He informed us that if we gave 'person aggrieved' too wide a meaning the class of person entitled to bring an appeal could become too remote from the original decision appealed.

11. We were of the opinion that Jeffrey David John Davies was a person aggrieved. In our opinion the decision to require the private hire vehicles to display the specific signage could lead to confusion by members of the public as to whether a vehicle was a private hire vehicle or a hackney carriage and so materially affect hackney carriage licence holders. We believed that the decision of the City and County of Swansea could have a prejudicial effect on the respondent's interests and has engendered a substantial grievance amongst hackney carriage drivers.

12. We therefore allowed the respondent to proceed with his appeal in the magistrates' court but the hearing was adjourned to await the decision of the High Court."

8. They posed the following question for the opinion of the High Court:

"Can the respondent in this case, a hackney carriage vehicle licence holder be a "person aggrieved" by a condition imposed on a private hire vehicle licence for the purposes of an appeal on section 48(7) of the Local Government (Miscellaneous Provisions) Act 1976".

9. The arguments before me have proceeded much as they did before the Justices. On behalf of the appellant, Mr Thomas submits as follows. He accepts that the meaning of the words a

"person aggrieved" can vary according to context and that previously decided cases on the point are little more than illustrative of what has been decided in different contexts and on difficult statutes.

10. He submits, however, as a general proposition, that a person should not be held to be aggrieved by a decision if it is not materially adverse to him, if he has no burden imposed upon him and if he is not being deprived of anything to which he is entitled. In a case of a licensing decision such as this, he says, the adverse impact of the decision on his interests should be so direct that he must be regarded as falling into the statutory category of a "person aggrieved" by it and, says Mr Thomas, the respondent does not meet that test.

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11. Mr Thomas says that it is not enough for a person to show that he is dissatisfied with the order or the original decision or that his interests are likely to be prejudiced by the outcome. He criticises the decision of the Justices, that there was potential for members of the public to be confused between Private Hire Vehicles and Hackney Carriages, and that this would have a prejudicial effect on the respondent's trade, as being, as he would have it, far too indirect and too remote to the issue to make the respondent a "person aggrieved" within the meaning of the section.

12. To give these words the meaning contended for in the present case by the respondent would, submits Mr Thomas, enable an appeal to be brought by far too wide a category of persons and include all persons who feared that there was a potential for their business interests to be indirectly affected by the decision of the Licensing Committee. He says that the statute does not contemplate a situation in which either the Hackney Carriage Trade in general or individuals holding Hackney Carriage licences should be able to litigate issues of the kind which the respondent wishes to litigate in the present case.

13. In summary he submits that "persons aggrieved" should properly in this context be limited to those such as Private Hire Vehicle licence holders who can properly show, as he says the respondent cannot show, that they are materially and directly affected by the decision and the conditions imposed.

14. On behalf of the respondent Mr Peter Maddox submits, on this point in common with Mr Thomas, that past judicial interpretations of the words a "person aggrieved" can be little more than illustrative and that the meaning varies according to context. He recognises that in some instances a restrictive interpretation is justified but submits that in others a broader interpretation can and should be applied. He submits that the respondent can establish a direct impact on his business and that the issues raised by the respondent are not too remote. He concludes with the submission that ultimately it is a matter of judgment as to whether such adverse impact as the respondent, he says, can establish outweighs the arguments put forward by Mr Thomas.

15. He points out that section 48(7) uses the words "person aggrieved" rather than some other words, in particular, words such as "an actual or prospective proprietor or applicant". He submits that had it been intended to restrict appeals in the way that Mr Thomas would have it, then some more limited form of words would have been used in section 48(7). In support of that submission he points to the fact that in section 55(4) of the Act, the words used in granting an analogous right of appeal from the Justices within a similar context are "any applicant aggrieved"; that in section 60(3) the right of appeal to the Justices is conferred on "any proprietor aggrieved"; that in section 61(3) the right of appeal is conferred upon "any driver aggrieved"; and that in section 62(3) the right of appeal is conferred upon "any operator aggrieved".

16. Mr Maddox submits that those other provisions in the same part of the Act show that when the draftsman wishes to confine the right of appeal to a narrowly defined class of persons he is perfectly able to do so, and so, conversely, as he submits, when the draftsman has chosen to use the more general form of words which appears in section 48(7). Those more general words are he says, to be read widely and sufficiently widely as to bring the respondent within the category of persons entitled to appeal under that subsection.

17. Mr Thomas, in response to that latter point, observes, correctly it seems to me, that in each of sections 55, 60, 61 and 62 the section is confined to a single type of person, namely in section

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55, a person who is "an applicant", in section 60, a person who is a "proprietor", in section 61, a person who is a "driver", and in section 62 a person who is an "operator". On the other hand, as he points out, the class of persons who are potentially involved under section 48 can be seen from section 48 subsection 3(a), to be a class consisting both of individuals who are "applicants" and also persons who are "proprietors".

18. Whilst I can see the force of the argument that in those circumstances there was reason for the draftsmen to use in section 48(7) a more general form of words than was necessary in the other sections, the fact, nonetheless, remains that the draftsman in section 48(7) has chosen to use the formula a "person aggrieved" when Mr Thomas' point based on section 48(3) could equally have been met, and consistently with the other sections would have been met, by the use in section 48(7) of words such as "any applicant or proprietor aggrieved".

19. Although a number of authorities have been referred to in the course of argument, neither Mr Thomas nor Mr Maddox, as I indicated, suggest that any particular case is more than illustrative of past approaches. Mr Thomas has very helpfully drawn to my attention a passage in Halsbury's Laws in England, Volume 1(1), paragraph 56. That passage reads as follows:

"The meaning of a 'person aggrieved' may vary according to the context, but a person will not be held to be aggrieved by a decision if that decision is not materially adverse to him or if the tribunal to which he seeks to appeal has no jurisdiction to find in his favour. Nor, in general, is it enough for a person to show that he is dissatisfied with the order made or that his interests are likely to be prejudiced by the outcome. He is normally required to establish that he has been denied of deprived of something to which he is legally entitled, or that the decision has imposed a legal burden on him, or that (as in the case of a licensing decision against which a right of appeal is provided by statute) the adverse impact of the decision on his interests is so direct that he must be regarded as falling within the statutory category of persons aggrieved by it. In some contexts, however, the expression has been interpreted more broadly to include persons objecting to a licensing application that has been granted, and other persons who have a substantial grievance in respect of an order, proposal or decision prejudicially affecting their interests but not encroaching directly upon them."

20. Both Mr Thomas and Mr Maddox, as I understand their respective submissions, accept that as being a fair, accurate and useful summary of the relevant principles.

21. Ultimately, it seems to me, this appeal turns on the meaning and the interpretation to be given to the words in this particular statute having regard to the particular statutory context. At the end the day, it seems to me, there are three considerations which point to the conclusion at which I have arrived, namely that the Justices were correct in their determination that the respondent was a "person aggrieved". The first is Mr Maddox's submission that if the draftsman had intended to limit the persons entitled to exercise the right under section 48(7) as Mr Thomas would have it, he could and would have achieved that objective by more narrowly drawn language. Secondly, and reinforcing that argument, it does seem to me that in this case the draftsman has in the other sections of the Act which were brought to my attention been able to use appropriately confined language on those occasions when he intended to achieve such a result. That is indicative of an intention in section 48(7) to have, if anything, a wider rather than a narrower class of person who is to be entitled to exercise a right to appeal.

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22. That is not to say that the class is limitless. Nothing which I say today is to be taken as indicating that the class of "persons aggrieved" under section 48(7) extends any further than the class of persons who are represented, as it were, by the respondent. I am certainly not indicating that the class of "persons aggrieved" would extend, for example, to the public generally or to any other section of the community. That leads me to the third matter. Having regard to the statutory context, it seems to me that it is appropriate in construing section 48(7) to have regard to the statutory principle in proviso (a)(ii) to section 48(1) of the Act, that licences for private hire vehicles are not to be granted by a district council if the vehicle in question is such that either in design or appearance it may lead any person to believe that the vehicle is a Hackney Carriage. It seems to me that that is indicative of a context under which the statutory mechanism in section 48 is seeking to draw a clear distinction between two different categories of vehicles, that is to say, on the one hand Private Hire Vehicles and, on the other hand Hackney Carriages. That seems to me something to which one should have regard informing a view as to the width of section 48(7) and it does seem to me that that is supportive of

23. Mr Maddox's submission that the respondent, as the holder of a Hackney Carriage licence is, as I find him to be, a "person aggrieved" within the meaning of section 48(7).

24. I return to the question which the justices have raised for the opinion of the High Court:

"Can the respondent in this case, a hackney carriage vehicle licence holder be a

'person aggrieved' by a condition imposed on a private hire vehicle licence for the purposes of an appeal on section 48(7) of the Local Government (Miscellaneous Provisions) Act 1976."

25. I answer that question in the affirmative.

26. (Appeal dismissed; order as to costs)

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Durham City Council vs. Fets (2005)

Newcastle Crown Court;

His Honour Judge Carr

1. We dismiss the Appeal by Durham City and we order that they pay the costs of Mr Fets. These are the reasons for our decision:

2. This is an appeal by Durham City Council against the decision of Durham Magistrates on 18th November 2004 when they allowed an Appeal by Adrian Fets and reversed the decision of Durham City Council whereby the Council sought to impose a condition that Hackney Carriages in Durham be white in colour. The Magistrates concluded that Mr Fets had satisfied them that the condition that Hackney Carriages in Durham be white in colour was not reasonably necessary.

3. In this Appeal we heard evidence over several days and on 31st August 2005 we dismissed the Appeal because we also, just as the Magistrates, conclude that Mr Fets has satisfied us that the condition that Hackney Carriages in Durham be white in colour is not reasonably necessary.

4. The origins of the policy are not that clear. In 2003 the City Council commissioned a survey upon the demand for hackney carriage services, which was carried out by Transportation Planning International Ltd, known as the TPI Survey. That survey made no mention of colour policy. Mr David Stewart told us that a colour policy would have been raised by him in a meeting of the Economic Scrutiny Panel on 1st March 2004. In the TPI Survey there had been a Public Attitude Survey in which only 12.7% of those members of the public questioned could demonstrate a satisfactory level of understanding of the difference between Hackney Carriages and Private Hire vehicles. Mr Stewart felt that the difference in colour between the two would lessen the confusion. He also told us that Durham County Council were seeking to align the colour in taxis within the county, namely colour white, but this was secondary. Further, there was a public safety issue which was linked to enforcement and that a one colour policy would assist in this.

5. Following the Economic Scrutiny Panel meeting on 1st March 2004 Mr Stewart told us there were a number of meetings with the two Trade Associations to discuss, inter alia, the colour policy. It has been said that one or both of these associations agreed with the colour policy and that the disagreement related only to whether silver or white should be the colour. We conclude on the totality of the evidence in relation to this that in reality neither Trade Association agreed to a one colour policy. What is clear is that the Trade Associations felt they had no option but to agree the policy. Certainly, we have seen no evidence that the City informed the Trade Association that they had a right of challenge in the Courts in relation to the colour policy.

6. On 2nd August 2004 Durham City Council's Cabinet approved a colour policy, that as of 1st September 2004 newly licensed Hackney Carriages in Durham City must be white and that newly licensed Private Hire vehicles may be any colour other than white. On 18th August 2004 Mr Fets lodged his complaint to Durham City Magistrates Court against the imposition of such a condition upon his licence. They upheld his complaint on 18th November 2004.

7. The relevant legislation is Section 47 of the Local Government (Miscellaneous Provisions) Act

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1976. Section 47(1) states a District Council may attach to the grant of a licence for a Hackney Carriage, under the Act of 1847, such conditions as the District Council may consider reasonably necessary. Subsection 3 of Section 47 states that any person aggrieved by any conditions attached to such a licence may appeal to a Magistrates Court.

8. We have been referred to a number of authorities such as Westminster City Council (2002 EWHCII04 Admin.), Reading Borough Council (2004 EWHN765 Admin.), Wirral NBC case (of 1983 3CMLRI50), Luton Borough Council case (1995, COD231) and Blackpool Borough Council ex-parte Redcabs (1994 QVD).

9. Of these authorities we find the decision of Mr Justice Judge (as he then was) in the Redcab case, of assistance more so than those authorities which are primarily focussed on Judicial Review. Clearly, Section 47(3) of the relevant Act gives Mr Fets a right to appeal to the Magistrates Court. What does he have to show in order to be successful in that appeal? We conclude that the law is that the burden is on Mr Fets to show that it was not reasonably necessary to attach the condition, of which he complains, to his licence. On Appeal to the Crown Court the same rule applies.

10. We now turn to an examination of the reasons for which the City Council says it relied upon in reaching its decision to have a colour policy of white for Hackney Carriages. We deal with them as they are listed in paragraph 23 of the appellant's submissions.

1, Ease of identification for members of the public

It is said that 12.7% of those questioned in the survey could demonstrate a satisfactory level of understanding of the difference between Hackney Carriage vehicles and a Private Hire vehicle. We do not believe that a colour policy will have any or any significant effect on the public's body of knowledge as to the legal differences between a Hackney Carriage and a Private Hire vehicle. It was this reason Mr Stewart put forward as the origins of this policy. It is said that a uniform colour is the most potent way of ensuring clear identification. Since a private individual can drive a white car which is not a Hackney Carriage we do not see any force in this argument. What does make easy identification is the taxi signage, which is already present on a city taxi. The City Council has not produced any evidence at all to show that the public have any difficulty in recognising a Hackney Carriage.

2, Ease of identification for enforcement

There is no enforcement problem in Durham City. If there is the City would have produced evidence before us, this the City did not do.

3, Public Safety

It is said that by introducing the policy it makes it less likely that unlicensed vehicles can be passed off as Hackney Cabs, therefore not only protecting the public but in consequence encourage more of the general public to use taxis. We have heard no evidence to suggest that there is a passing off problem in the city. Since contiguous District Councils do have a white colour policy, for the city to have the same it is likely to encourage Hackney Carriages licensed by other authorities to ply for hire in the city when they drop off a fare in the city. In other words, a white colour policy will do precisely what the city says it wants to prevent. We do not think that the colour of a taxi, as such, will

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encourage a person to use a taxi if they otherwise would not have done so.

4, Image

It is said that white taxis would have a raised profile on the streets and encourage the public to use them as part of an overall Public Transport Provision. We believe that white is a colour that will deteriorate quickly, both of itself and in bad weather. We therefore, even if image was a relevant factor, disagree that the image of Durham City public transport will be enhanced in the way suggested. Durham City has its own colours, neither of which are white.

5, Having a standard fleet

It is said that standardisation for Hackney Carriages county-wide is a legitimate consideration - this may or may not be right. The problem here is that the County Council has done no research whatsoever into the repercussions of a county-wide policy of this nature. Two areas spring immediately to mind: first the question of vehicles licensed in one district plying for hire in another and second the availability of white vehicles as taxis. To push a policy without having done any preparatory research gives us no confidence in that policy, particularly when it relates to the conditions upon which persons earns their livelihood. We accept that there are different shades of other colours and that black and white may well have less shades than these colours. White does, however, have different shades to it.

11. We accept that the timescale by which the policy is to come into force is a reasonable one. However, it is clear to us that the policy has not been worked though before its implementation. Initially, no thought had been given as to what happened when a licensed vehicle needed to be repaired and to say that we were surprised to find out that a vehicle which had been licensed then needing repair was substituted, had to come back white is understating our reaction.

12. We now turn to the Respondent's case. No reference is made to colour being used as a way of distinguishing between Hackney Carriage and Private Hire vehicle in the TPI report, The Office of Fair Trading report or The Best Practice Guidance issued by The Department of Transport. The suggestion that a person being carried in a Private Hire vehicle may not be insured fails to take into account that there is no problem of Private Hire vehicles unlawfully plying for trade and that, in any event, the Motors Insurers Bureau Agreement would give protection.

13. The city's Director of Legal Services in a letter dated 11th November 2004specifically said:

"Nor am I aware of any particular safety problems with taxis".

14. As recently as 14th June 2005 the Director wrote:

"I have liaised with the Licensing Manager and we have been unable to find any trace of a successful prosecution brought by the City Council for illegal plying for hire within the last 3 years".

15. There is no evidence, in our Judgement, that there is an issue of public safety in so far as the hire trade in the city of Durham is concerned. The Respondent submits, and with this we agree, that harmonisation across the county is more likely to lead to illegal plying for hire by other taxis.

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16. The Council failed to do any research into the availability of white cars. In our view, the City Council did no preparatory work into the consequences of bringing into force the colour white policy. Had it done so, it would have been clear that the popularity of white as a colour for a car has significantly reduced over the last few years. Any observant motorist would have been able to see this. We are satisfied that the research efforts into the availability of suitable white cars carried out by the Respondent is extensive and reliable. The Appellant's evidence on this we find sketchy and carried out as an afterthought.

17. We conclude that in so far as second hand white cars are concerned there is only, at best, a very limited amount available and certainly not in sufficient quantities to allow a taxi driver to find a replacement within a reasonable length of time.

18. Insofar as the availability of new white cars is concerned Mr Fets, who is an honest witness, told us he had to wait 9 weeks for delivery. This is an unreasonable burden for any taxi driver to have to carry - for without his car he may not be able to earn his living.

19. The City's suggestion that a car could be obtained and re-sprayed, at a significant cost to the taxi owner, was yet another example of failing to do the necessary research. Had the City done so, they would have found out that a vehicle being purchased on Finance, as most taxis are, cannot be re-sprayed without the consent of the Finance Company. Our opinion is that such consent was not likely to be easily obtained.

20. The Respondent also states that white cars depreciate faster than any other colour of vehicle. We accept this as an acknowledged fact. Having said this, the use of any vehicle as a taxi is likely to have a significant effect upon its trade-in value in any event.

21. The Respondent has carried out research in relation to how many other Authorities have a white colour condition. Out of 396 Licensing Authorities 313 had no mandatory policy. White is the mandatory colour in just 7% of all Licensing Authorities. 80% of all Licensing Authorities have no colour policy. These figures lead us to conclude that there is no compelling reason why Local Authorities should have a colour policy but, as always, we have to look at the local reasons for and against such a policy.

22. We are satisfied, as the Magistrates were, that there has been no assessment made by Durham City Council as to why a colour policy is reasonably necessary for Durham. We have not heard one word from any member of the public expressing any concern as to how the taxi business was operated in Durham pre the introduction of a colour policy. We are satisfied that 3 distinctive features, the sign on top, the logo on the doors and the plate itself, are sufficient for a member of the public to clearly identify a Durham Hackney Carriage and distinguish it from a Private Hire vehicle. We are satisfied that the present distinguishing features are adequate to deter passing off by unlicensed vehicles and thereby sufficient to secure passenger safety. We also accept that the City Council carried out adequate consultation with the trade. Lack of sufficient research into the needs for such a policy, however, as to what was to happen if a car needed to be repaired and the position that a car that had a licence could not be re-licensed if it was not white, clearly is unacceptable.

23. We differ from the Magistrates with regard to their findings on unavailability of white vehicles. We conclude that this is not just inconvenience but is a significant problem. It is not reasonable for a

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self-employed person to run the risk of no work for 9 weeks because of a waiting list for white cars. And it is not reasonable for a self-employed person to be required to have his vehicle re-sprayed at a significant cost or not to be able to have it re-sprayed at all because it has been purchased on finance.

24. We therefore conclude, as did the Magistrates, that Mr Fets has satisfied us that the condition that Hackney Carriages in Durham be white in colour is not reasonably necessary and accordingly we dismiss this Appeal by the Durham City Council.

25. Mr Singh, in his closing submissions in writing, referred to other grounds upon which we should dismiss the Appeal. We have not dealt with those but indicate that he did address us on these matters.

26. So there we have it Mr Fets. Those are our reasons, now you can spend your time earning your living again.

27. Mr FETS: That will be nice

28. CLERK TO THE COURT: Court Rise

We hereby certify that this Judgement was approved by His Honour Judge Carr on the 10th October 2005.

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Stockport MBC v Kenneth J Eyles (Livery)A2002-0014

MANCHESTER CROWN COURT MINSHULL STREETMANCHESTER

Thursday, 29th April, 2002

Before:-

HIS HONOUR JUDGE GEAKE (Sitting with Magistrates)

APPEAL OF

STOCKPORT METROPOLITAN BOROUGH COUNCIL

-V-

KENNETH JOHN EYLES

MR. WALSH appeared on behalf of the Respondent.

MR. GLEESON, on behalf of MISS KILPATRICK, appeared on behalf of the Appellant.

(Transcribed from the Official Notes by Cater Walsh & Co, Official Court Reporters, Suite 410 Crown Court Bullring, Kidderminster DY102DH)

(Official Court Reporters and Tape Transcribers)

JUDGEMENT


JUDGE GEAKE: The appeal raises, if I may say so, quite interesting philosophical and legal issues in which the decision of an elected local authority council, in this case Stockport Metropolitan Borough Council, are challenged by the appellant and by statute are reviewable by an unelected Magistrates Court and, thereafter, here by an unelected Crown Court.

So, we have been referred, perfectly properly, by Mr. Walsh, and had due regard to the 1971 case of Sagnata Investments Limited-v-The Norwich Corporation and have paid proper regard to the opinion policy and decisions of the respondent local authority and, clearly, this case emphasises the tensions between individual rights and necessary local Government controls.

This Court believes that the proper starting point from which to approach this problem is the general Human Right as enshrined in Article 1 of the first protocol of the European Convention, which is

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referred to in the documents before us and which I quote from Miss Kilpatrick1s skeleton argument:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions", and I summarise, "Except in the public interest as is deemed necessary to control the use of property in accordance with the general interest".

That, plainly, is the starting point in our view from which to approach this appeal. The Court also accepts, and it is agreed by all the local Government Miscellaneous Provisions act 1976, Section 47, empowers a local authority to attach to the grant of Hackney carriage licences and I quote, "Such conditions as the council may consider reasonably necessary".

Subject to sub-Section three, "Any person aggrieved having a right of appeal to a Magistrates' Court".

We believe that, in accordance with general legal principles, the burden of proving the grievance, on a balance of probabilities, lies upon the appellant to show that the local authority's stated conditions are not reasonably necessary.

To that end the Court heard the evidence in the case:

First of all from Mr. Norman Elthorp, who is and has been the manager of the licensing team for the council. He, no doubt, acted throughout, as he saw it, with the best of intentions and told the Court that he was concerned with Trading Standards and with concerns about safety and illegal plying for hire by taxis which undoubtedly does, from time to time, occur although there is no evidence that it has caused any particular problem, from the point of view of the public confidence or safety.

The more recent history of this matter is, perhaps, constructive, and I turn to page 27 of the respondent's bundle which is effectively Mr. Elthorp's statement - Mr. Walsh, I am going to read from this so that it is in the record - starting at paragraph seven of Mr. Elthorp's statement, we go back to the 20th August 2001:

"Members of the sub-committee received a report relating to the introduction of a corporate image for taxis, this followed a best value review of the Trading Standard Service in which it was recommended that Stockport examine the possibility to improve its taxi fleet by requiring a uniform colour and control on advertising. The review included the observations of a critical friend from Nottingham, where they have a taxi fleet of a corporate colour which is regarded as assisting in recognition and, therefore, safety of the travelling public.

The meeting resolved to amend the council's condition for taxis with effect from 1st January 2002 so that taxis could only be dark green, all advertising on the side panels would be prohibited and the council's crest, approximately 50cm by 50cm, would be displayed on the front door of each side of the vehicle; this related to new vehicles, new release vehicles and gave an 'end date' of 31st December 2008 for existing licensees". The report was submitted to the August 2001 meeting and accepted by members, set out the criteria upon which the best value review recommendation was based and then the criteria followed.

Subsequent to this decision being made, it was noticed that it was a very unpopular with the taxi

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trade and, as such, a request was made by members of the committee to undertake a consultation process with various stakeholders. It is worth noting that there was also a change to the chair of the committee around this time who was eager to hear the views of the taxi trade, he was involved in the meeting with many taxi owners as part of consultation process which demonstrated the lack of popularity with trade but other stakeholders welcomed the apparent improvements.

On 12th February 2002, the new licensing, environment and safety committee - hereinafter, L.E.A.S. - received a report again relating to the image of taxis. The report gave details of trade consultations requested by members of the committee, it revealed that the taxi trade was particularly concerned about a single colour of green for taxis and the financial implications considering that the majority of cabs were a single colour; namely, black. Trade also expressed reservations about the size of the proposed crest on the doors. As a result, it was resolved by the committee that from 1st April 2002, the council's requirement for taxis be amended to state that taxis could only be in the approved colour, black, that each vehicle be required to display council coat of arms, the words 'Stockport Licensed Taxi’ and the licence plate number on the rear door and an additional plate would be fixed to the front of the taxi, which, together with the rear licence plate, being the material and colour approved by the council.

The committee further decided that, with effect from 1st April 2003, the council's conditions for taxis would be amended to prohibit all advertising on taxis and that only vehicles in the approved colour would be granted a licence capable of extending beyond 31st December 2008.

On 13th August 2002 a report was submitted to L.E.A.S. looking to vary taxi fares for 2002/2003, in that the report was an additional(sic) addition to the formula used to calculate the fares, allowing an amount of 500 pounds to compensate owners of taxis for the loss of income due to restriction of advertising on vehicles. In passing we noted that that particular proposal was not implemented according to Mr. Elthorp. However, even despite this change of view by the committee, many in the taxi trade were still unhappy and I, therefore, arranged a further meeting with them and, again, the Chair of the committee to discuss the issues. At this meeting it was noted that to have all taxis black would not make them as distinctive as Stockport taxis as the green taxis would have done, the Chair stated that his preference for distinctive colour, if retained, remains green; this then resulted in further consideration of the issue of colour and also a recognition that signs on the side, incorporating the licence plate number and additional plate on the front, would make them distinct.

Subsequent to this meeting, and having considered the views of the taxi trade, I then submitted a further report to L.E.A.S. on 14th January 2003:

"Pursuant to my report members accepted that the colour restriction be lifted, having taken into consideration the fact that if the requirement for all cabs to be black were retained, there would be no particular distinction for Stockport taxis and as against those from other areas. However, the requirement to display a notice, incorporating the licence plate number, be kept and the committee decided that advertising be restricted to the rear doors only, each vehicle will display a notice on the front door panel consistent of the council crest and the words Stockport Licensed Taxi and the licence plate number, and any additional licence plate will be fitted to the front of the taxi of a material approved by the council".

I have read that section in full because that is, effectively, the history of the matter up to 14th January 2003. The minutes for that meeting do refer to passenger confidence and safety and a

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reduction in unlawful plying for hire.

It is clear to us, and from the evidence in the case, in any event, that as far as the public is concerned unlawful plying is not of serious significance when hailing a cab wherever that may be and that it would be at least as easy for a member of the public to identify a cab by its advertisement as by a sign or a crest on the side of the cab.

As for policing the proper use of taxis and policing unlawful plying for hire, any enforcement officer would know where to look for and be able to see the number of the cab wherever it was located, not necessarily in the places chosen by the respondent council in this case. Moreover, it is recognised that taxi drivers themselves are the best placed and best motivated to notice and police any rogue Hackney cabs unlawfully plying for hire in their licensing area. In any event private hire cabs pose the main problems in the terms of unlawful plying for hire rather than Hackney carriages.

The Court accepted, and it is plainly agreed by Mr. Walsh for the respondents, that the appellant himself and the witnesses called by him such as representatives of the Stockport Area Drivers' Association and Mr. Darlington, whose job it is to sell cab advertising space to customers, are all perfectly decent, respectable individuals who accept the need for licensing regulations but who do not recognise the need for such restrictions on advertising, as is required by Stockport in this particular instance. Obviously, matters of taste and decency will require scrutiny at all times.The Court heard evidence, and accepted, that there are significant revenues to be had from such advertising but the restrictions thus far imposed significantly curtailed the demands by advertisers thereby naturally reducing the income of owners, such as the appellant in this case, and consequently limiting their ability to upgrade and improve their taxi fleets for the ultimate benefit of the public.

It is, in our view, very significant in this case that virtually all other local licensing authorities sanction the use of full two-door advertising or, indeed, all-over advertising on cabs and there is no evidence of any adverse impact upon the safety or the confidence of the travelling public from that. It is, within our experience locally, that many such cabs do not even have a side notice of any sort on either side of their cabs, only a front and back plate and a taxi sign, of course, on the top but if a side notice is required by Stockport, we believe it could just as effectively be placed on a window, such as is shown in some of the photographs that have been put before us.

So, in our appellate capacity in this case, we have come to the conclusion that the restrictive conditions imposed by the respondents in this case are not reasonably necessary for public confidence, for public safety; they do not, in our view, serve to assist in the curtailment of any illegal plying for hire which might occur and we believe that they are not, and have not, been logically thought through and that further thought and consultation could have been given by the parties to these issues and should therefore be given in the future.

To that end we allow this appeal by Mr. Eyles and will say no more about it.

Those are our views, Mr. Walsh.

I certify that this is a true and accurate verbatim transcript of my Palantype notes in the case of the appeal of STOCKPORT METROPOLITAN BOROUGH COUNCIL-v-KENNETH JOHN EYLES from pages 1 to 8 to the best of my skill and ability.

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Signed

(Official Court Reporter)

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Stockport MBC v Kenneth J Eyles(costs)

THE CROWN COURT

A2002-0014

MANCHESTER CROWN COURT

MINSHULL STREET

MANCHESTER


Before:-

HIS HONOUR JUDGE GEAKE (Sitting with Magistrates)

APPEAL OF STOCKPORT METROPOLITAN BOROUGH COUNCIL

-V-

KENNETH JOHN EYLES

MR. WALSH appeared on behalf of the Respondent.

MR. GLEESON, on behalf of MISS KILPATRICK, appeared on behalf of the Appellant.

(Transcribed from the Official Notes by Cater Walsh & Co., Official Court Reporters, Suite 410 Crown Court Bullring Kidderminster DY102DH)

(Official Court Reporters and Tape Transcribers)--

RULING FOR COSTS


JUDGE GEAKE: We are grateful to, Mr. Walsh, for his expose, exposition, of the up-to-date law on the costs in this sort of case and we have had regard to the case of The City of Bradford-v-Booth and the principle to be derived from that decision and we have come to this conclusion: that Mr. Walsh is, obviously, right to point out that the question of whether costs are awarded in a case of this sort depends upon whether the Court believes it is just and reasonable to do so, and that is a very basic concept; in general terms, costs will follow the event but we have had to consider whether or not, in the special circumstances of this case where a complainant has successfully challenged before justices an administrative decision by a regulatory authority, whether the authority were acting honestly, reasonably and properly and on the grounds that reasonably appear to be sound in the exercise of its public duty and the Court has to consider that in the special circumstances of a case of this sort. We have done and we have given it some considerable thought this morning but it seems to us, I have to say, that as a result of our findings in this case, by which we set out, in detail, the history of the matter

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as it was explored by the parties and as it developed through to 2003 and the ultimate restrictions that were placed on advertising, and our finding that there was no logic or rational to that particular set of conditions, we believe that, in this particular case, it has to be said that those conditions were not reasonable, whatever the local authority's position was, and we have come to the conclusion that costs, as in the normal way, ought to follow the event; they will, therefore, have to be taxed or agreed by the parties.

I certify that this is a true and accurate verbatim transcript of my Palantype notes in the case of STOCKPORT METROPOLITAN BOROUGH COUNCIL-v-KENNETH JOHN EYLES from pages 1 to 2 to the best of my skill and ability.

Signed.

(Official Court

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D.C.Parsons -v- South Kesteven District Council re Taxi meter

IN THE LINCOLN CROWN COURTAT LINCOLN

Before Judge Richard Pollard

D.C.Parsons Appellantv.South Kesteven District CouncilRespondents

Judgement

1. This Appeal arises from a decision of the Grantham Magistrates on 22 January 1996. The Appellant has an interest in a hackney carriage licence. His case is that conditions in his licence are unlawful, for reasons set out hereafter. Although the Magistrates held that he was a "person aggrieved" they refused him any relief.

2. The first issue that arose on this appeal was whether or not the Appellant is a "person aggrieved" within s.77 of the Local Government (Miscellaneous Provisions) Act 1976. We gave our full reasons yesterday for holding that he is such a person. Essentially it is impossible to obtain a hackney carriage licence from the Respondents unless the applicant has a taximeter installed in his vehicle. We concluded that that amounted to a "condition attached to the grant of a licence", within s. 47 of the 1976 Act. As will become apparent later we also conclude that the requirement to have a taximeter means that the Respondentsinevitably thereby enforce their Table of Fares.

3. A Council is entitled to impose such "conditions" as it "considers reasonably necessary", s. 47(1) of the 1976 Act. In this case the Council had considered it "reasonably necessary" to require the installation of taximeters as a prerequisite (which we deemed a condition) for the obtaining of a hackney carriage licence, that being in their judgement necessary to balance the interests of the public on the one hand and the providers of the service on the other.

4. The Appellant's complaint is twofold:(i) that the Respondents' decision was such that no reasonable authority could deem such a condition "reasonably necessary";(ii) that the Respondents have, in any event, no power to impose such condition over the whole of their area.

5. To understand those arguments, it is necessary to look at the history and geography of the respondent's district and then to look at the history of the legislation governing the grant of hackney carriage licences.

6. South Kesteven District Council is comprised of the old urban districts of Grantham, Bourne and Stamford, together with the surrounding "rural areas". It covers a total area of 360 square miles. It is

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one of the creatures of the 1972 round of local Government re-organisation created down by the Local Government Act 1972.

7. The history of hackney carriage licensing dates back to the Town Police Clauses Act 1847. Under s.37 of that Act commissioners were authorised to license such carriages "within the prescribed distance, or, if no such distance is prescribed, within 5 miles of the GPO of the town." Section 68 empowered the commissioners to fix the fares charged by licensees. The commissioners have been replaced by local authorities. By Section 171 of the Public Health Act 1875 the phrase "within the prescribed distance shall, for the purposes of this Act, mean within any urban Council".

8. Under the Local Government Act 1972, Schedule 14, para. 24(b) the general extension of the powers of the old councils to the new was made inoperative in relation to Hackney Carriage licensing, that schedule stipulating that such licensing was limited to the old urban areas.

9. Under the Local Government (Miscellaneous Provisions) Act 1976 a local authority was given the means of formally administering its licensing controls, by s. 47, cited already (para 3 above). The Respondents applied these provisions to its old urban areas. That is admitted by both sides (see admission 15 and Document 12).

10. A table of fares was thereafter introduced regulating the Hackney Carriage fares in Grantham, Bourne and Stamford and everyone proceeded on that basis.

11. The Transport Act 1985 extended Hackney Carriage licensing powers to the whole of a Council's the area i.e. in this case to the whole of the area administered by the South Kesteven District Council. There is no other possible interpretation of the plain wording of that Section. If there is any doubt about the meaning of that Section it is immediately resolved by reading the Circular from the Department of Transport at Paras 1 to 4, 7(c) and 9 (Document 22). That Act also set up a potential system of shared fares.

12. The Respondents, empowered so to do by the 1985 Act, applied the licensing provisions of the 1976 Act to their whole district, i.e. the rural as well as the urban areas. This was done by resolution of the Council, as is again agreed under Admission 17, and see Documents 13 and 14. Thereafter they instituted a Table of Fares which was to apply to any journey within the District. That was last updated in 1993.

13. The difficulty for licensees in such a vast area is that they might have to travel 10 miles (the "dead" miles) before they can "start the meter running" and it is this that is the Appellant's grievance. We are told that the trade continued to charge above this structure (without deliberately flouting it) to allow for the fact that they cannot charge for the "dead" mileage. In effect they carried on charging for the "dead" mileage on rural runs. It was only when an ultimately unsuccessful prosecution was launched that the present disputes between the - trade and the Council erupted. The Council finally climbed down in June 1996 and deregulated the trade, laying down only a "default tariff" but otherwise leaving it up to the parties to agree on a fare. The "default tariff" allows for a booking fee to make up for the "dead" miles.

14. We have concluded that the Council was empowered by statute to regulate hackney carriage licences within its whole district and decided so to do and that, therefore, the phrase "prescribed distance" of the 1847 Act is replaced for present purposes by "the whole of the area of the South

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Kesteven District Council".

15. We are satisfied that the Respondents have power to regulate the hackney carriage trade within the whole of its area and may, therefore, if it can do so in a reasonable way, regulate fares within its whole area. The fact that it may be difficult to construct a table of fares that is fair to all is a problem that they and the trade are going to have to face. We can have no say in how that is achieved. It may be that the Table of Fares will have to differentiate between urban and rural fares, it may be that the present system of allowing a "Booking Fee" in defined circumstances is appropriate. That is a matter for the Council, so long as it acts reasonably.

16. We are also satisfied that to impose an old urban fare structure over a vast rural area was unlawful in that no reasonable authority who applied its mind to the situation (and we doubt that this one did) could expect the trade to cope with that, given the inability to charge for the "dead" mileage. That would mean that someone travelling 2 miles within Grantham would be charged the same as someone travelling 2 miles within the country, even if the taxi had had to travel 5 miles to pick them up. For that is the fundamental nature of hackney carriages. They can only charge from the point of pick-up (whether they obtain the fare by plying for hire, sitting at a stand or by answering the phone. In that last event the hiring is a private one but the fare is still limited to the Table).

17. We believe that it is sophistry to say that we can look at the requirement of a taximeter but that we cannot look at the Table of Fares. We reject the contention that the Table can only be looked at by way of judicial review. We cannot make any sense of the appellate jurisdiction given to the magistrates and to this court without looking at the Table and its inevitable effect, particularly as the Table has effect, for the purposes of the 1847 Act as if it were included in hackney carriage byelaws (s. 65(5) of the 1976 Act). Taximeters are meaningless without a Table of Fares. The real effect of the Respondent's condition that there be a taximeter was that the council were imposing a condition as to the fares that could be charged. Indeed, they must have thought that when they commenced their prosecution of a driver for not imposing their fare structure.

18. We therefore conclude that it cannot have been "reasonably necessary" to impose such an unfair fare structure. The Appellant is justifiably "aggrieved" and we find in his favour. Subject to argument we are minded to order the Respondents to pay his costs, here and below.

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Southampton City Council v May (Camera in taxi)

JUDGMENT

This is an appeal by Southampton City Council from a decision of District Judge Calloway sitting in the Southampton Magistrates’ Court on the 10th April 2011. By his decision he allowed an appeal by Kevin May against a decision of the Council who issued him with a Hackney Carriage Licence on the 27th October to which was appended the condition requiring him to install and maintain a digital camera within his vehicle.

The question appears at first sight to be a simple one, namely should the Council have made the licence subject to the condition. The case has, however, developed a life of its own, and acquired a complexity which has required us to decide a number of preliminary and inter-related issues.

The first point raised was whether the Court as at present constituted should hear the appeal at all. This point arose from the late transfer of the case from the Southampton

Crown Court to this Court, the Salisbury Crown Court. This Court consisted of a Recorder and two lay justices. It was argued on behalf of the Appellant that it was inappropriate for the appeal to be heard by two justices from the Salisbury area rather than from Southampton, since the case involved local affairs and would require local knowledge.

The Courts Act 1981 provided the power to create rules. The Crown Court Rules

1982 were made under this power.

Rule 2 (1) provides that “in these rules, unless the context otherwise requires, any reference to a judge is a reference to a judger of the High Court or a Circuit judge or a Recorder; “justice” means a justice of the peace.”

Rule 3 (1) provides that “subject to the provisions of Rule 4 and to any directions under section 74 (4) of the Senior Courts Act 1981, on any proceedings to which a

subsequent paragraph of this Rule applies, the number of justices sitting to hear the proceedings and the qualification of those justices shall be as specified in that paragraph.

Rule 3(2) provides that “on the hearing of an appeal against a decision of licensing justices under the Licensing Act 1964, the Crown Court shall consist of a judge sitting with four justices, each of whom is a member of a licensing committee appointed under Schedule 1 to that Act and two (but not more than two) of whom are justices for the local justice area in which the premises to which the appeal relates are situated. A similar provision is made by Rule 3 (3) in respect of a decision under the Betting, Gaming and Lotteries Act 1963.

Rules 3 (1) and 3 (2) have no application to the licensing of taxis. Notwithstanding that, it was argued on behalf of the Appellant that there is a residual right to take objection to the constitution of the Court.

Counsel for the Respondent argued that if Parliament had considered that a similar provision should be made with regard to the licensing of taxis it would have made such a provision. The absence of such a provision shows that there was no such intention. There is no such discretion to adjourn the case in order to implement such an intention.

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The Local Government (Miscellaneous Provisions) Act 1976 Part 2, section 45 deals with the Licensing of Hackney Carriages. Section 47 (3) gives the right of appeal to any person aggrieved by a condition imposed on the grant of a licence. No provision is made for the hearing of such an appeal by justices from a particular area. Parliament could have made such a provision if thought appropriate. Nor is there any such provision under the Licensing act 2003, which removes the requirement.

We ruled on this submission before hearing the remainder of the arguments. There is no specific statutory or regulatory provision for the constitution of the Court by particular magistrates. Such a provision could easily have been made if that was the intention of Parliament. The lack of such an intention can be inferred from the lack of such a provision.

There is no statutory or regulatory indication that Parliament intended to confer a discretionary power to adjourn cases so that magistrates from a particular area could sit. All indications are to the contrary. Any inherent power to adjourn proceedings is for case management purposes which do not apply in this case.

Even if there was a discretionary power to adjourn so that magistrates from a particular area could sit on the appeal, we would not have exercised the discretion to adjourn for that purpose. The question of whether the condition was necessary and proportionate is evidenced based. The District Judge founded his decision on the evidence adduced before him, and there is no reason why this Court should not do likewise.

While the appeal could equally have been heard by justices from any area, if anything, it is arguable that the independence of justices from outside Southampton could be a positive advantage when dealing with a case which concerns the policy of the Southampton City Council, in that it could add to the perception of fairness.

It is worth noting that a considerable portion of the Appellant’s evidence contained in the appeal bundle consists of newspaper reports of incidents all over the country.

Furthermore, there were arguments on both sides comparing the policy of the Southampton Council with that of other local authorities.

The Magistrates’ Court is not the licensing authority for the purpose of licensing Hackney Carriages. That responsibility rests with Southampton City Council. This is not therefore an appeal from the licensing authority, as is the case with regard to an appeal against a decision of the magistrates under the Licensing Act 1964, or under the Betting, Gaming and Lotteries Act 1963.

It is to be noted that justices may now sit in any area.

There was in the circumstances no good reason for adjourning the case so that the

Court can be differently constituted.

The second submission was also of a preliminary nature. It pre-empts the first of the

Grounds of Appeal to this Court. The first ground of appeal was that the Magistrates’ Court was wrong to consider that it had jurisdiction to rule upon a policy of the Appellant rather than the effect of the operation of that policy upon the individual complainant.

It was argued on behalf of the Respondent as a preliminary point that this Court should not permit itself to consider the issue of whether or not it should rule upon a policy made by the Council, as it

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was said that this was not an issue raised in the Court below and it was not open to the Appellant to take the point here.

The learned District Judge in a careful reserved judgment did not deal with this issue, but appears to have taken it for granted that he could review the policy and decide whether it was lawful. He concluded that the Respondent “has sought to introduce a wide ranging and “blanket policy” in relation to this condition. It has given insufficient regard to whether there is a pressing social need for such a condition, and insufficient regard to the respective rights of both passengers and drivers.”

It is not clear whether or not the question of whether he was entitled to make such a ruling was fully argued before him. It was apparently argued orally, but not referred to in skeleton arguments placed before him. It is said that Counsel for the Respondent was taken by surprise, and was not able to deal fully with the point.

According to Counsel for the Respondent one could infer from the silence on this issue in the District Judge’s judgment, that he had declined to listen to argument upon it or rule, because it was introduced at a late stage.

Counsel for the Appellant on the other hand maintained that one could infer that as he had heard oral argument on the matter, he must have considered it and decided that he

did have jurisdiction to examine the policy of the Appellant, and that the Respondent had been entitled to appeal from the decision of the licensing authority to operate such a policy. It was argued on behalf of the Appellant that this was a re-hearing, a hearing de novo, and that fresh evidence could be adduced and fresh issues raised.

On behalf of the Respondent it was said that although this was a re-hearing so far as the evidence was concerned, it was otherwise not de novo, and substantial issues of law not canvassed in the Court below could not now be raised. It was said that the nature of the hearing was a review of the decision of the Learned District Judge, and that this Court’s task was to review the judgment to decide whether the Learned District Judge was wrong, albeit having considered the evidence before this Court as well as the judgment.

Two cases were quoted in support of this contention. In Sagnata Investments v Norwich Corporation [1971] 1 QB 614, Lord Edmund Davies LJ quoted a number of authorities, and his conclusion can be summarised in this way; that although the appeal (to quarter sessions) was by way of a complete rehearing, this does not mean that the views of the local authority, duly constituted and elected should be disregarded. Further in R (on the application of Hope and Glory Public House Ltd) v City of Westminster Magistrates’ Court [2011]3 All ER 579, Toulson LJ at paragraph 48 said “it is normal for an appellant to have the responsibility of persuading the court that it should reverse the order under appeal and the 1981 Rules envisage that this is so in the case of statutory appeals to magistrates’ courts from decisions of local authorities.” We re-iterate that this is not an appeal from a licensing authority. It is arguable that the Learned District Judge should have had more regard to the views of the local authority which in the absence of an application for judicial review can be taken to have considered all the relevant circumstances including local conditions. Furthermore, if we come to consider the policy under review, we too should give consideration to the views of the local authority. However, this Court is dealing with an appeal from the Magistrates’ Court and different considerations apply at this stage.

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The question of whether we can consider the policy of the Council was raised in the skeleton arguments placed before us and it cannot be said that in this Court either party was hampered in its ability to deal with the issue.

This appeal is hybrid in nature. It is a civil matter in the sense that it does not involve an allegation of a criminal offence, and it deals with an issue between Southampton County Council and the holder of a Hackney Carriage licence. The procedure provided for the appeal is however quasi-criminal, or at least similar to that provided for a criminal case heard summarily. The original appeal was in the Magistrate’s Court and this hearing is by way of appeal to the Crown Court, the Court consisting of a Judge (Recorder) and two lay justices. It is conceded that fresh evidence can be adduced (although it is said only on issues previously raised.) We find that we should treat this as a re-hearing de novo. It would be artificial to do otherwise. This Court cannot be sure of precisely what arguments were advanced in the Court below. There is evidence before us which was not before the Learned District Judge. It is inevitable that this would give rise to different arguments. The skeleton arguments are different and evidently raise different issues. If as asserted this important issue was not raised before the District Judge, that omission may have resulted in his misdirecting himself. That would not be a good reason for this Court to do likewise. The purpose of this appeal is to put right any erroneous decision of the Court below by hearing the matter afresh.

As a result, neither the evidence nor the issues are restricted to the points raised in the Magistrates’ Court. If we happen to reach a conclusion contrary to that of the Learned District Judge on the basis of the evidence and arguments before us that finding will inevitably mean that we find that his conclusion was wrong, although it may not have appeared wrong on the basis of the evidence and arguments presented to him. It is not helpful therefore to review his judgment in order to ascertain whether it can be said to be wrong. We are not bound to have regard to the decisions he reached. If we come to consider the policy however, we will for the reasons mentioned have due regard to the policy decision of the elected body entrusted by Parliament with the formulation of such policies.

It follows therefore that we were entitled to consider the question of whether it is within the jurisdiction of this Court (or for that matter the Court below) to review the policy of Southampton County Council and decide whether it was lawful or whether it violates Article 8 of the European Convention on Human Rights.

First we consider what is meant by policy, as this itself proved to be a controversial issue. It was suggested on behalf of the Respondent that the policy was the prevention and detection of crime and the protection of the public, and the licensing conditions imposed upon drivers as a whole were the means by which the policy was to be achieved. We rejected this interpretation. We distinguished between three elements, the aims and objectives, the policy adopted by the Council to achieve those aims and objectives, and means by which the policy was to be implemented.

The aim of local authority licensing of the tax and Private Hire Vehicle Licensing trades, according to Taxi and Private Hire Vehicle Licensing: Best Practice Guidance,

is to protect the public. In order to do so it has to strike a balance between imposing licensing requirements to ensure that vehicles are safe and imposing conditions which are so onerous as to restrict the supply of properly licensed vehicles. Local licensing authorities are urged to look carefully at “the costs – financial or otherwise – imposed by each of their licensing policies.” They should ask themselves “whether those costs are really commensurate with the benefits a policy is meant to achieve.”

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In order to achieve the objective of protection of the public, the Licensing Committee adopted a licensing policy, namely the policy set out in the minutes of its meeting held on the 26 th August 2009. The policy was to impose six conditions “with a view to improving the quality of both vehicles and the service provided by drivers.” The 6th condition was that “in line with the Government and Council priorities on crime and disorder, public and driver safety, all licensed vehicles be fitted with Council approved digital cameras as soon as possible and in any case at the time a current licensed vehicle is replaced with the cost to the proprietor/driver capped at £250 excluding VAT and fitting costs.”

The sixth condition was that every taxi should have a secure digital taxi camera system approved by the Council fitted to the vehicle prior to the grant of the licence and maintained in the vehicle thereafter for the duration of the licence to the satisfaction of the Council. No specifications were attached to this condition, but we were informed, and it was agreed by both parties, that the only system which was approved by the Council was one which made audio recordings as well as visual, and which could not be de-activated by the owner or driver of the taxi, even when he was engaged in private activities, such as taking his family on holiday. We were invited by both parties to read this stipulation into the condition.

The stated reason for the adoption of the policy appears in the minutes of a meeting of the Licensing Committee of the Council on the 26th August 2009. The Committee resolved that all licensed vehicles be fitted with Council approved digital cameras “in line with Government and Council priorities on crime and disorder, public and driver safety.”

The power to attach conditions to a hackney carriage vehicle licence can be found in the Local Government (Miscellaneous Provisions) Act 1976, section 47 (1). This provides that “a district council may attach to the grant of a licence of a hackney carriage under the [Town Police Clauses] Act of 1847 such conditions as the district council may consider reasonably necessary.”

It was argued on behalf of the Respondent that it would be unlawful to take a policy decision to impose such a condition on all taxis without exception because to do so deprived the driver of the possibility of an appeal to the Magistrates’ Court under Section 47 (3) of The Local Government (Miscellaneous Provisions) Act 1976 Part 2, which as already explained, gives the right of appeal to any person aggrieved by a condition imposed on the grant of a licence. Such a person might otherwise challenge on its merits a decision to attach a condition to the grant of an individual licence.

This point was dealt with by the Court of Appeal in R (007 Stratford Taxis Limited) v Stratford on Avon District Council[2011] EWCA Civ 160 in paragraphs 12-13. In that case the Council took a policy decision that all taxis should have wheelchair access. The President said “it is open to an authority to decide to adopt a policy of this kind. Such a decision is open to challenge on orthodox judicial review grounds.”

It was pointed out that Civil Procedure Rule (CPR) 54.5(1), which governs judicial review claims, provides that a claim form must be filed promptly and in any event no later than three months after the grounds for making the claim first arise. This would mean that a driver whose taxi was to be licensed more than three months after the policy came into effect would be deprived of the opportunity to challenge it in the

Court if it could not be challenged in the Magistrates’ Court and, on appeal, in the Crown Court.

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This may be unfortunate but in our view it does not endow the Magistrates’ Court (or this Court) with the power to conduct a Judicial Review. A challenge to the policy as opposed to its implementation in particular circumstances is clearly the province of the Administrative Court. It is not for this Court to consider whether or not there is some means by which the Administrative Court could be persuaded to adjudicate upon the policy, as opposed to adjudicating upon its application resulting from a case stated, so as to enable an aggrieved person to establish his Article 8 rights.

As the Appellant points out, this Court is not permitted to attack a policy made in principle by the Council. This was made clear in R (Westminster City Council) v Middlesex Crown Court [2002] EWHC 1104 (Admin). The case concerned the issue of a public entertainment licence. The Council adopted a policy with the presumption against the grant of a licence in areas already saturated with late night entertainment and refreshment uses. Scott-Baker J said “how should a Crown Court (or Magistrates’ Court) approach an appeal where the council has a policy? In my judgment it must accept the policy and apply it as if it was standing in the shoes of the council considering the application. Neither the Magistrates’ Court nor the Crown Court is the right place to challenge the policy. The remedy, if it is alleged that a policy has been unlawfully established, is an application to the Administrative Court for judicial review. In formulating a policy, the council will no doubt first consult the various interested parties and then take into account all the various relevant considerations.” It is to be noted that in formulating the policy in this case the Council did indeed engage in a consultative process, one in which Mr May played a prominent part.

We have therefore reached the conclusion that it is not open to us to review the policy of the Southampton City Council, and in that respect the decision of the Learned District Judge is wrong and the appeal will be allowed.

Counsel for the Respondent argued that we are entitled, indeed bound, to look at the Respondent’s individual case in order to see whether the condition should have been imposed in his case. Both Counsel agree, for different reasons, that the Council is entitled to consider an individual case to see whether exceptionally the policy should not apply. Counsel for the Appellant says it, lest failure to allow the possibility of an exception for individual circumstances might render the policy unlawful, because it would leave the Respondent without a remedy. (Article 13 of the European Convention on Human Rights provides that “everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Counsel for the Respondent says it in order to persuade us that this was a case where the Council should have considered the individual circumstances of the Respondent, but never enquired into them. He says we are therefore entitled to review their failure to do so. We are satisfied that neither the

Council nor Mr May thought at the time that the policy allowed for exceptions.

Nothing in any of the documents we have seen suggests this, and it is most unlikely

that any taxi owner would know, if it be the case, that there existed the possibility of exceptions to what was otherwise a blanket policy.

Although Mr May has made a fresh witness statement since the earlier hearing he does not bring to our attention any circumstances which would apply to him but not to every other taxi owner. Even if there is scope for exceptions to be made, there are no grounds on which the Council could have found that Mr May was an exceptional case. His Counsel goes on to argue that in the light of that, since it is open to us to consider his individual case, and that depends on the policy we are entitled to consider the policy. Further he says we should not, in the case of this individual, implement, or

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approve of the implementation of an unlawful policy. In order to avoid doing so we should look at the policy to see if it is unlawful for the reasons set out above.

Having already declined to rule on the lawfulness of the policy, we do not intend to permit it to creep in by the back door, and we do not consider that we are permitted to examine the policy on the pretext that it affects the individual taxi and individual condition.

In case our conclusion as to our jurisdiction to rule on the lawfulness of the policy is wrong, we were however invited to consider the issues which followed and which go to the question of whether the policy was lawful.

We have already referred to the Local Government (Miscellaneous Provisions) Act 1976, section 47 (1), which provides that “a district council may attach to the grant of a licence of a hackney carriage under the [Town Police Clauses] Act of 1847 such conditions as the district council may consider reasonably necessary.”

Counsel for the Appellant argues that “reasonably necessary” evokes the concept of Wednesbury unreasonableness. This derived from Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 KB 223. The Respondent would have to establish that the decision to impose the condition was so unreasonable that no reasonable authority would ever consider imposing it.

On behalf of the Respondent it was said that this argument was not to be found in the

Appellant’s skeleton argument, and should not be permitted to be advanced now. Furthermore, the concept of reasonableness was a more general one and not as narrow as that prescribed in the Wednesbury case. In any event even if the concept of Wednesbury unreasonableness is adopted, the condition was so far from necessary on the evidence that no reasonable authority could impose it.

In order to judge whether the policy was reasonably necessary we had to examine the evidence adduced on behalf of the Appellant, although it is not certain how much of this was available to the Licensing Committee when deciding to adopt the policy, or the extent to which they considered it.

The report leading to the decision of the Council on the 26th August asserted that cameras were fitted to fulfil two roles; to ensure the safety of the public and secondly the safety and integrity of the driver.

In support of the argument that the condition was reasonably necessary for this purpose, the Appellant relied upon the evidence by way of statement of Mr Richard Scott Black, the Licensing Manager for Southampton City Council. He was responsible for the licensing of Hackney Carriages and Private Hire Vehicles. Although the power to attach conditions to the licence derives from different sections

of the Local Government (Miscellaneous Provisions) Act 1976, as the same condition applies to both we have not differentiated between them and have referred to both as taxis in this judgment. The condition applied to the grant of new licences from the 26th August 2009 onwards.

Mr Scott Black was concerned not only with the prevention and detection of criminal offences but with the interests and promotion of public safety generally, and the question of whether the driver is a fit and proper person to hold a licence. He said that since April 2008 the authority had dealt with numerous incidents where it had to suspend drivers due to the serious nature of alleged offences. However, he set out the number and nature of offences where suspensions had been considered. In 2008 there were three allegations of sexual offences and three of assault, resulting in a total of 3

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suspensions. In 2009 there were four of sexual offences and one of assault, resulting in five suspensions. In 2010 there were two of sexual offences and one of assault resulting in two suspensions. Mr Scott Black gave details of some of these occasions, and it was not clear in the case of all of them that cameras either assisted or would have assisted, though in one case at least evidently it protected the driver against false allegations. In one instance three elderly and partially sighted ladies were put out on the street without further assistance. The conversation recorded on the audio camera resulted in the suspension of the driver.

The 10 or 11 instances spread over three years have to be seen against the number of vehicles licensed by Southampton City Counsel. Those with cameras fitted had by the time of Mr Scott Black’s undated statement reached 450 out of a total of about 1,000. Assuming each of the vehicles made several journeys a day, there must have been at least many thousands of journeys over that period.

The Appellant also relied on the anecdotal evidence from a relatively junior police officer, Detective Constable Timothy Mark Blanche. He spoke of three occasions over a three year period in which what he erroneously refers to as CCTVs in taxis were relevant. In one after a public order incident, a suspect made damning comments to the driver, was arrested and pleaded guilty. In another a driver was hit over the head with a hammer, and the suspect was identified by the camera in the taxi. In a third, the plea of guilty in a case involving domestic violence seems to have been the result of a statement from the driver, though it could have been affected by the presence of the camera. In a fourth incident, it was said that camera footage could have protected the driver from a false allegation.

A more senior officer, Chief Inspector Stuart Murray also provided a statement. It appears that the police do not keep records which would be of assistance. Nevertheless he was able to compile a table of offences undated. Of the 14 offences listed, 6 were making off without payment, and there was an assault, gravity unspecified, in respect of which a camera would have been “very useful” but not essential. There was a further assault occurring outside the taxi, so the fitting of a camera was not relevant. There was a case of criminal damage, though no details of the circumstances or value were given, a dwelling house burglary, and a further serious assault and serious public disorder. Three of these examples, including the last two, duplicated the evidence given by the Detective Constable.

There were numerous press cuttings describing various events in different parts of the country. It was impossible to evaluate the accuracy of these reports, and, as they occurred in many different areas, the extent to which the necessity for cameras corresponded with the necessity if any in the Southampton area. Furthermore, the evidence was again anecdotal rather than statistical.

These examples were produced by Mr Bryan M Roland, who was the founder and General Secretary of the National Private Hire Association. His principal concern was the safety of taxi drivers, some 60 of whom had according to him been murdered over a number of years over the country as a whole. Most of the incidents were alcohol related and many were racially motivated. He referred to Sheffield where one of his members had reported that the incidents of violence and abuse against taxi drivers over the Christmas period had been reduced from 300 to 6 following the installation of CCTV cameras in the company vehicles. In fact the cameras to be installed in Southampton are not CCTV cameras, as they are not monitored. Once again the evidence from Southampton suggests a very different picture from that in some other parts of the country. Furthermore, all these are examples of attacks on or abuse to taxi drivers, rather than to other members of the public. While there is a public interest in preventing crime generally, including that against taxi drivers, it has to be

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remembered that the condition is imposed on licences granted to taxi drivers. Should they wish to protect themselves, there is no reason why they should not fit cameras on a voluntary basis, and we understand that many do.

Having considered all the evidence put before us we take the view that in order to further the aims and objectives adopted, it was not reasonably necessary to install audio cameras on a permanent basis in all taxis in Southampton.

We now come on to consider the application of Article 8 of the European Convention on Human Rights. The application of Article 8 was challenged in the Court below. It was contended on behalf of the Appellant that there was a distinction between a private home and a taxi. The Learned District Judge devoted part of his judgment to this issue. He came to the conclusion, rightly in our view, that the condition engaged Article 8. Happily in this Court that was conceded and the appeal proceeded on the basis that the right under Article 8 was a right accorded to taxi drivers, family and friends, and also to customers hiring the taxi.

Article 8 provides that “(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Counsel for the Respondent argues that the exception should be strictly construed. He cites a number of authorities. In Silver v United Kingdom 5 EHRR 347 at 377 it was said that “those paragraphs of Article of the Convention which provide for an exception to right guaranteed are to be narrowly construed.”

At 376 when examining the phrase “necessary in a democratic society” it was adjudged not synonymous with “indispensible” neither has it the flexibility of such expressions as “admissible”, “ordinary”, useful”, “reasonable” or “desirable”. “The phrase “necessary in a democratic society” means that to be compatible with the Convention, the interference must, inter alia, “correspond to a pressing social need” and be proportionate to the legitimate aim pursued.”

The legitimate aim as stated in the minute is to act “in line with Government and Council priorities on crime and disorder, public and driver safety.” In order to ascertain whether it was “necessary” in the sense referred to in Article 8, and in particular whether it corresponded to a “pressing social need” it was necessary to look again at the evidence.

In addition to the evidence to which reference has already been made, we were referred to a survey carried out by a company called Halcrow Group Ltd, commissioned by Southampton City Council to undertake consultation with members of the public across Southampton to obtain their view as to a number of issues surrounding the use of taxis and private hire vehicles in Southampton. This was capable of addressing the question of a pressing social need.

40% of the 397 respondents said that they used taxis or private hire vehicles in Southampton. 89.5% said they felt safe when travelling in such vehicles by day, 82% in the evening, and 66.2% by night. 10.9% of those who did not feel safe felt that

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CCTV (sic) in the vehicles would make them feel safer. However, when told that “Southampton Taxi Licensing Department requires all taxis and private hire vehicles to be fitted with fixed cameras that record digital images for public safety,” 89.6% of all respondents said they agreed with this policy. Notably they were not told that the cameras also made audio recordings at the same time, and were fixed permanently in the vehicle. Nevertheless a significant number apparently referred to CCTV as being an invasion of privacy. The results of this survey failed to convince us that there was a pressing social need for the condition as it stands.

We have been referred to a letter from Nicki Hargreaves, at the Information Commissioner’s Office, in response to a complaint made by Mr A Giffard of Imperial Cars Southampton in respect of the application of the Council’s policy with regard to the compulsory installation of cameras. It appears that the digital recordings are encrypted and cannot be accessed by members of the public or the taxi drivers themselves. Since the introduction of the requirement the recorded images have been accessed and used on a very limited number of occasions and only in the most exceptional circumstances. While this supports the claim that the use is not excessive in terms of the Data Protection Act 1998, it also impacts upon the question of whether the provision is necessary, and whether it satisfies a pressing social need.

The view of the Commissioner was that there is no reason to be concerned about the security of the systems in place, the storage of captured information and the access and use of the images and audio when it is considered necessary.

However the view taken by the Commissioner’s Office is that given how rarely the images and audio are accessed, the level of intrusion into every single trip taken by every customer of a licensed vehicle operated by the Council cannot be considered proportionate to the aim of the system. For this reason the recording of audio itself is considered excessive for the purposes. Such excessive recording of personal data cannot be considered fair under the first principle, (namely Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless at least one of the conditions in Schedule 2 is met. The relevant conditions are “the processing is necessary ….for the exercise of any functions conferred on any person by or under any enactment or (d) for the exercise of any other functions of a public nature exercised in the public interest by any person or the processing is necessary

for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.)

This is of course only an opinion, and is in any event relevant strictly to the concerns of the Information Commissioner’s Office, but the conclusion is not without interest and is based upon a factual matrix which also is of concern to us.

Having considered all the material before us we have reached a conclusion as to the condition as it stands, namely that every taxi should have a secure digital taxi camera system approved by the Council fitted to the vehicle prior to the grant of the licence and maintained in the vehicle thereafter for the duration of the licence to the satisfaction of the Council, read to refer to a camera making audio recordings as well as visual, and permanently fitted and operating whenever the vehicle is operating. The condition is in our view does not correspond to a pressing social need, is not proportionate to the legitimate aim pursued and is not necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the

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prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The most invasive aspect of the installation is the recording of each and every conversation both of conversations between the driver and passengers, and more importantly between passengers in the vehicle. Also invasive is the recording both visual and audio when the vehicle is in private use. We came to the conclusion that the condition as it stands is not necessary in pursuit of the stated aims. Furthermore, balancing the duties of the Council to promote public safety and take steps for the prevention of disorder or crime against the Article 8 rights of the drivers and passengers, we consider the condition to be disproportionate and a violation of Article 8. Had the recording been restricted to visual, and had some means been made available to de-activate the camera while the vehicle was in private use, perhaps by a technician designated for the purpose, we would have taken a different view. Although Article 8 would still be engaged as the activities and whereabouts of fare paying passengers would be visually recorded, the degree of interference would in our view be justified in pursuance of the legitimate aims and objectives of the Appellant.

In conclusion therefore we accepted the argument of the Appellant that we are entitled to consider whether or not we have jurisdiction to consider the policy of the Council irrespective of whether consideration of it was given by the Court below.

We find for the Appellant in that we do not consider this Court has jurisdiction to overturn the policy of the Council. The Learned District Judge should not therefore have assumed that jurisdiction.

If we had such jurisdiction, we would have found in favour of the Respondent that the policy was not lawful, and was not justified in pursuance of the legitimate aims and objectives of the Appellant and the Learned District Judge was right in his

conclusions in respect of this.

If the policy were to be amended and the condition limited to visual recordings while the vehicle was in operation as a taxi, the policy would in our view be justified in pursuance of those legitimate aims and objectives, and therefore lawful.

There is no reason to make an exception from the implementation of the policy by imposition of the particular condition in respect of the Respondent.

THIS APPEAL IS ALLOWED

STEWART PATTERSON 17th November 2011

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IllustrationsGreen liveried taxi demonstrator without top sign

Private Hire Vehicle liveried door sign

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Witness StatementsWitness statement David Williams-Wynn

(CRIMINAL PROCEDURE RULES, PART 27)

Statement of witness

STATEMENT OF: David Williams-Wynn

Age of witness: Over 18

Occupation of witness: Licenced Hackney Carriage driver in Guildford

This statement consisting of one page, signed by me, is true to the best of my belief and I made it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have willfully stated in it anything which I know to be false or do not believe to be true.

Dated: Signed:

I have been a licenced taxi driver in Guildford for over 40 years.

I was in the upper High Street a few weekends ago, on my way back to Guildford Station, following 2 of the wrapped Taxis. As I entered North Street, I was flagged down by 3 people wanting to go to the Travel Lodge, I made a point of asking, “Why me, and not the 2 Cabs in front of me”. They said, I quote, "we didn't know they were Taxis, we thought they were Council Vehicles”.

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I believe that drivers with wrapped vehicles are losing business because some members of the public don’t recognize them as Guildford taxis for hire.

Signed

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Witness statement Mark Guy Rostron



STATEMENT OF: Mark Guy Rostron



This statement consisting of one page, signed by me, is true to the best of my belief and I made it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have willfully stated in it anything which I know to be false or do not believe to be true.

Dated: Signed:

The pages indexed in the bundle contain true information to the best of my knowledge.

Signed

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Witness statement Paul Soper



STATEMENT OF: Paul Soper



This statement consisting of two pages, each signed by me, is true to the best of my belief and I made it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have willfully stated in it anything which I know to be false or do not believe to be true.

Dated: Signed:

I am a licensed hackney carriage driver in Guildford. Recently I purchased a Hyundai i40 saloon car with 9000 miles on the clock for £12,250 to use as a taxi. This was to replace my previous taxi, a Peugeot partner Tepee which was a rear loading wheel chair accessible vehicle that had reached the end of its useful life. To get my new Hyundai licensed as a hackney carriage by Guildford Council, I had to have the vehicle liveried in a green plastic wrap with Guildford taxi markings on it. I did not want the wrap as I did not think it would stand up to the wear and tear of taxi use. I took a professional paint sprayer to the Council to persuade them to allow me to have the car painted green instead, but the Council refused and insisted I had the Hyundai wrapped.

I took my car to Surrey Vinyls who were on the Council’s list of approved suppliers of the wrap. Surrey Vinyls wanted £1,050 to wrap my Hyundai and I paid a £200 deposit. Surrey Vinyls wrapped the car in green plastic but when I checked the car I found some car badges and plastic moldings had not been replaced properly or at all. When I opened the tailgate I also found the roof lining hanging down. Surrey Vinyls corrected these faults, but I then noticed that the roof lining which they had removed to do the wrapping was creased. Surrey Vinyls could not rectify this fault as it would have been too expensive for them. The damage was £1757.48 pence to roof lining.

Surrey Vinyls then agreed to waive the cost of the wrap and refunded my deposit, but they insisted I sign a declaration that I take no further action against them.

Following that I noticed that the wrap was peeling off the car where it had not been attached properly.

I found that Surrey Vinyls had cut through the lacquer on my vehicles paintwork where they had cut around the edges of the wrap. I can’t afford to repair the damage to the paintwork so I’ve lost my 10 year manufacturers paintwork warranty. I enquired of an independent warranty company, and they advised me they would not give a warranty on my vehicles if this paintwork damage was not corrected.

Surrey Vinyls have sent me a receipted invoice for something I have never paid for.

Hyundai say the damage needs to be repaired and to do that the wrap has to be taken off and replaced, all at extra cost.

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I’ve further found that some of the electrical safety equipment has been removed and replace by people who haven’t had proper training and who can’t test the equipment to see if it’s working properly.

I complained to Guildford and they said I would have to take it up with Surrey Vinyls.

Guildford Council have done no risk assessment of wrapping the taxis.

GBC said all the companies on their list were good. I feel I been given wrong information by licensing officers and this has cost me a lot of trouble to correct and thanks to a lot of unknowledgeable people at GBC.

When first left my car with Surrey Vinyls I saw them wrapping another Guildford taxi. I saw them taking badges off with a screwdriver and damaging the paintwork. I asked them not to do that to my car.

I lost time off work having the car wrapped against my wishes and sorting out associated problems and all this has been for no benefit to me. I don’t expect the wrap to last anywhere near the 10 years the Council said and has based its compensation in the proposed taxi fare structures. It’s got scratches on it already.

I asked to see the car Guildford Council had used to demonstrate the wrap, but when I arrived at the Council offices at the appointed time, the car was suddenly unavailable and I was told it had been disposed of. The Council refuse to say where the test car went.

Guildford Council assured me the wrap would be OK, but it isn’t.

I’ve since found out that the guy who wrapped the cars has County Court judgements against him making it unlikely that I’ll get any compensation from him.

I’ve subsequently found out that several people have complaints about Surrey Vinyls on the internet and that Guildford Council have removed them from the approved list.

I’ve since come to understand that the wraps are more appropriate for advertising than permanent taxi wrapping.

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Paul Sopers damage repair estimate

910Z poonmau!d (3)

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Do not use Surrey Vinyl Wraps!F r i d a y, 1 1 O c t o b e r 2 0 1 3

Surrey Vinyl Wraps denies events

Over the following few days I will be adding content and communication evidence to document how Surrey Vinyl Wraps are denies the events and stating to customers that I refused to allow them to replace the parts.

The string of text messages with Chris Kuhl document how I sent 60 text messages, waiting and demanding that the replacement parts were ordered and my car was repaired. The text messages entail Chris making excuses for over 2 months and finally claiming he does not have any money to buy the replacement parts.

Only at this point did I offer to accept a small cash settlement so that I could repair the car with used parts to reduce the cost for Surrey Vinyl Wraps. The total cost for the parts through Audi came to approximately £1000.

Michael Morris (Surrey Vinyl Wraps) claims they were unaware of the cut to the leather door card and are stating that this is a lie. I have over 10 text messages from Chris accepting liability for the damage to the door card and also text messages from Michael Morris confirming that he will replace the door card. It appears they are attempting to fabricate the story being told to customers.

More to follow 11/10/2013 PM.

Andyleem at 05:56

4 comments:

Rich 27 December 2013 at 14:50

Was looking to use Surrey Vinyl Wraps. Glad I read this blog, will look for a

more professional outfit instead. Thanks for sharing. Hope you get your car sorted.

Reply

Unknown 27 January 2014 at 17:00

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God I wish I'd read this blog before Chris destroyed by car! he owes me a complete re‐spray and has now gone silent. Do you have any contacts or other ways I can get in touch with him? Did you threaten legal action? Please get in touch if you can help....we need to put this idiot out of business!

Reply

Replies

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Whats your email?

17:03 February 2014 at 26Andyleem

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Do not use Surrey Vinyl Wraps! Pictures of damage.T u e s d a y, 2 3 J u l y 2 0 1 3

Surrey Vinyl Wraps destroyed by Audi TTRS and still owe me £1000 for damage.

I strongly recommend you DO NOT use this company and read this first.

I paid for Surrey Vinyl Wraps to wrap my Audi TTRS in Matte Lime Green. I dropped the car off and they told me they would need 3 days. On the 5th day I arrived to pick up the car at 9am. They had not finished the car and I waited 6 hours in their unit for them to finish the car.

When the car was completed I completely checked it over to see the quality of the wrap. To my horror I found a knife cut all the way down my leather door card (£800 to replace) and my fuel cap was severely dented from where they tried to pry it off with screwdrivers (£160 to replace). The windscreen has a long knife scratch in it which will require the whole windscreen replacing. They also snapped all the sideskirt clips, so my sideskirt was hanging off and attached by some tape (see picture).

I notified Chris Kuhl (owner of Surrey Vinyl Wraps) and he promised to replace all the parts. I was told he would have the parts within a few days and I could bring the car in the following week. After over 60 calls and texts over a space of 6 weeks, I was ignored and on the 6th week I was told "I am skint, I can't do it right now'.

I have been left with £1000 damage to my car and I will be having the wrap professional removed due to the poor quality.

Surrey Vinyl Wraps is trading illegally without business insurance. I have also reported them to HMRC for tax evasion. Chris Kuhl (the owner) also has a CCJ against his name.

I am in the process of also doing the following:

Contacting every major car dealership within a 60 mile radius of Surrey Vinyl Wraps and warning them not to use the company.

Reporting the company to Trading Standards for operating illegally and failing to repair/reimburse cost of damage to my car.

Posting the story to a minumum of 10 forums.

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Here are the pictures of the damage to my car:

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Andyleem at 09:19

Signed

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Pauls Soper’s damage repair estimate for roof lining, not including repairing paintworkFrom: "Palmer, James" <[email protected]>Date: 11 October 2016 at 09:23:33 BSTTo: "[email protected]" <[email protected]> Subject: Body Corrosion

Good Morning Mr Soper Thank you for your Communication, Looking at the information received would suggest The vehicle in question having had the body work covered within a film (Wrapped) would suggest During the process of the fabrication any damage caused to either the lacquer or the paint work Would void the warranty on that panel due to the protection covering being damaged causing moisture to get under the lacquer.

Best Regards,

Jim Palmer Warranty Advisor

Kia Motors (UK) Ltd.

Walton Green, WaltononThames, KT12 1FJ

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Paul Soper’s emails to GBC

From: Justine Fuller <[email protected]>Date: 7 October 2016 at 10:38:01 BSTTo: 'paul soper' <[email protected]>, John Martin <[email protected]>, GrahamEllwood <[email protected]>, Mike Smith <[email protected]>Subject: RE:Rapping off taxis [UNC]

Dear Mr Soper

Your query has been passed to Mike Smith who will respond to you shortly.

Kind regards

Jusne

From: paul soper [mailto:[email protected]] Sent: 06 October 2016 23:24To: Justine Fuller; John Martin; Graham Ellwood; Mike SmithSubject: Fwd: Rapping off taxis

Sent from my iPhone

Begin forwarded message:

From: paul soper <[email protected]>Date: 6 October 2016 at 11:15:56 BSTTo: John Martin <[email protected]>, [email protected],[email protected], Graham Ellwood <[email protected]> Subject: Rapping off taxis

I am very concerned about the way the cars that have been raped and dismantled And also all problems which have been bought to my attention did you do a risk assessment on the company's you told us to go to please reply many thank from paul soper6/10/2016 time 11.15

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Subject: RE:Rapping off taxis [UNC]

Dear Paul,

The process is as follows:

The livery specification is on our website at: https://www.guildford.gov.uk/taxi

Any provider is able to contact us with a request to be included on our list, providing they are able to meet the Council's specification and that they are a genuine business they will be included. We may ask to meet with providers, see websites or examples of previous work to confirm that a potential provider is a genuine business and not someone who has set up without experience in the area, or to make money out of drivers. I, or my managers make the decision to add or remove providers from the list.

Providers are however not endorsed or recommended by the Council. We have a maintain a list of providers of the livery and provide specifications for this, but each supplier will set their own charges for the livery.

We have deliberately not entered into contracts with the providers or procured the services of any provider. This is because the Council did not want to become involved with procuring vinyl wraps and the relationship should be directly between the vehicle proprietor and the company.

Thanks…Mike

Mike Smith

Licensing Team Leader

From: Mike Smith <[email protected]>Date: 10 October 2016 at 08:56:11 BSTTo: 'paul soper' <[email protected]>, Justine Fuller <[email protected]>, JohnMartin <[email protected]>, Graham Ellwood <[email protected]>Subject: RE:Rapping off taxis [UNC]

Dear Mr Soper,

The Council maintains a list of suppliers who have stated that they can meet the livery specification. These suppliers are genuine businesses involved in wrapping vehicles. Providers can be added or removed from this list at the Council’s discretion. I do not see any benefit in discussing the decision making process any further suffice to reiterate our previous advise to you, which is that should any driver be dissatisfied with the standard of livery work carried out by a wrapping company then they should contact the provider directly to resolve the issue, and inform the Council.

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To date, we have only had one driver, yourself, contact us expressing concern at the standard of workmanship they have received from a provider.

The Council’s wrapped fleet vehicle was wrapped by a company no longer trading. It has also since been unwrapped and taken out of use.

We have also previously requested that you avoid any repetitive communications to the Council as this only saves to take up our time and unfairly increase costs to other licence fee payers.

Please consider this advice carefully before contacting the Council about the livery again.

Mike Smith


Health and Community Care Services

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Witness statement of Benn Simmonds

WITNESS STATEMENT



STATEMENT OF: Benn Michael Simmonds


Occupation of witness: Licenced Hackney Carriage driver in Guildford and Tiler

This statement consisting of pages, each signed by me, is true to the best of my belief and I made it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have willfully stated in it anything which I know to be false or do not believe to be true.

Dated: Signed:

The wrap was forced on me by the Guildford Council licencing team and the councillors. There was discussion and debates but there was only ever going to be one outcome.

Cost of wrap and from Surrey wraps was £1400.00.

Value of compensation from GBC £315.00

Surrey Vynyl have quoted me £450 to £500 for a professional removal of the livery wrap from my car.

I've also had damage to the wrap since it was fitted, and it cost me £20 to repair a small panel, plus half a days loss of money. My bike rack had damaged the wrap on the roof. With in days of the wrap I had a stone chip damage the wrap. The stone would not have damaged normall paintwork.

Livery is not durable. Damage already occurring. Lateral surfaces only guaranteed for 2 years, not the 10 the council said and assume in their fare compensation calculation.

People think my car is a GBC vehicle. As I was the second car to have the livery, on the first night out a customer approached me and said “your working late for a council worker” I said why do you think I work for the council” his reply was “it say Guildford Borough Council on the door. I politely informed them I was self employed and didn’t work for them. He then replied and said” that’s misrepresentation”

I have had People walk past me on the taxi rank to get into following cars as they thought I was a bogus taxi.

I had customers approach me and asked if I had a folder left in my car and I said I’ve had a few days off so it won’t be me. I ask her what type of car was it. She replied a green one like yours. What make of car was it I said. Don’t know just a green one they all look the same.

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I can’t do chauffer work. I have lost regular customers now that my car is green. They believe it doesn’t set a good example for them to travel with a branded car. Result loss of earnings.

I believe green is also the colour that is hardest to see if you are colour blind or have trouble with your sight.

The following is a record of my email exchanges with Guildford Borough Council:

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Emails from Respondent re costs to Mr Simmonds

Dear licensing

On the 9th December 2015 the council and councillors past the new Taxi policy. Which was amended by the licencing team at Guildford borough council.

On the 19th of December 2015 I purchased a ford mondeo which meets the licensing vehicle requirements.

On the 22nd December 2015 I had the above vehicle tested at woking road testing station, where the vehicle passed.

On the 24th December 2015 I call the council office to arrange for plate HC185 to be transferred from my old vehicle to my new vehicle.

I call the council office and spoke to the receptionist at guildford borough council I was in formed that my new vehicle needed to be Liveryed up in the new guildford borough council colours before they would issue the new plate.

I then asked to be transferred to a licencing officer which she did. This was confirmed by a member of the licencing team.

When I asked where I can get the livery applied, the response was. We are in the process of sorting a supplier with the correct colour and dimensions.

This licencing policy was passed on the 9th December 2015

Since then I have had to rent a licenced taxi from beeline taxi's at a cost of £200 a week.

At the same time I am paying for a car that I can't use. Monthly finance, monthly insurance costs, monthly road tax costs.

Now there is a court sumons that has been issued against the adoption of the livery within the new policy.

If I'm not mistaken now there is a court case involve, the livery can not be enforced until the matter has been resolved by the courts.

I am asking you the licencing team to allow my new vehicle to be plate so I can use my new Taxi. Either on a temporary 30 day plate or for the remaining 6 month that is left on plate 185. If this is not possible then I have no alternative but invoice licensing at guildford borough council for all cost and charges that I will incur if my new vehicle not licensed.

Yours sincerely

Benn Simmonds

Signed

On Mon, 11 Jan, 2016 at 12:44 pm, Mike Smith

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<[email protected]> wrote:

Dear Benn,

Thank you for your message. I appreciate that all you wish to do is licence your vehicle and start to make a living. I can assure you that we do not wish for the process to be delayed either.

I have a meeting this week with some of the providers and suppliers of the wrap material and hopefully this will result in a quicker process in the near future.

With regards to the other supply of vinyl, my understanding is that this will not give the quality and life expectancy of the material we have originally specified. I am however waiting for the provider to send the specification details and a sample of this vinyl to us so that we can make this decision.

Thanks and Regards,

Mike Smith


From: B SIMMONDS1 [mailto:[email protected]]

Sent: 08 January 2016 14:32

To: Mike Smith

Subject: Re: RE:Vehicle licensing [UNC]

Dear Mike Smith

Thank you for your reply and your assistants

Sorry but I don't mean to be a pain but it's just time money and money lost when you have family to support.

Would it be possible that the council or licensing department could contact the manufacturer and try to speed this process up for us the driver and the installer. When I spoke to the installer he said that there was a a cheap manufacturer that is the same quality. May be this manufacturer can supply quicker and would be more cost effective.

Thanks

Benn Simmonds

Sent from Yahoo Mail on Android

On Fri, 8 Jan, 2016 at 12:19 pm, Mike Smith

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<[email protected]> wrote:

Dear Mr Simmonds,

Thank you for your email.

You are correct in that the Council’s Licensing Policy was passed on the 9 December 2015. When you refer to amendments, I assume you are referring to the BTEC requirement. This amendment to the earlier Licensing Committee decision was made and voted on by Councillors, and not the Licensing Team.

The Policy, approved on the 9 December required any new hackney carriage, or any change of vehicle after this date to comply with the Livery requirement. Therefore, whilst you vehicle may have met the specification, as it did not comply with livery requirements then we are unable to licence your vehicle as a hackney carriage until it does.

I recall speaking to you about this matter in December and recall that you were keen to licence the vehicle as soon as possible due to the vehicle approaching the 5 year age limit. In fact I believe we agreed to assist you and accept your application at this time and issue you a plate once the vehicle is liveried at a later date, rather than reject your application in its entirety until the vehicle is liveried and risk you not being able to licence the vehicle at all due to its age. When we spoke yesterday, you advised you were considering licencing the vehicle as Private Hire and we have given you advice as to how to go about this process.

With regard to your comment about suppliers being in place, we have been working with a number of livery suppliers for some time, before the Council’s decision, so that suppliers were in place when a decision was made. We have also added a number of new suppliers to the list of providers after the Council’s decision as a result of the trade researching new suppliers and of publicity which has been picked up by the wrapping trade. We currently have six providers on our list, with potentially a number more being added in the near future.

You will appreciate that until a decision was made, vehicle livery providers will have been reluctant to order vinyl stock as there was a risk that this element of the Policy may not have been passed, leaving the supplier out of pocket. You will also appreciate that a supplier may be unlikely to want to place an order for vinyl until they have received orders from the trade and know that this stock will be used. Once members of the trade begin to place orders, I am sure that this lead time will reduce. I would also suggest that you make contact with all providers on the list to enquire about their lead time as this may vary and it may be that they have already received enquires from the trade.

I appreciate that in the meantime that this leaves you with a vehicle which you cannot licence, however I regret that I am not able to recommend we deviate from our Policy and licence a new vehicle which does not meet the livery requirement. I also regret that the Council is not responsible for reimbursing you for any costs.

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Please do not hesitate to contact me if I can be of any further assistance.

Regards,

Mike Smith


13 Jan Hi this the repose

Good morning Mr Simmonds,

Thank you for your email.

I regret that the recent articles in the press have caused some confusion amongst the trade regarding the livery.

The appeal scheduled to be heard at the Magistrates Court on the 26 January is not a legal challenge to the entire livery Policy. This is not permissible via this route. The correct legal mechanism to challenge the whole Policy is to seek a Judicial review through the Administrative Courts. The appeal relates to the conditions imposed on the appellant’s individual licence, and not conditions attached to every licence issued by the Council.

Any licence holder is permitted to appeal the award of conditions on their licence within 21 days of the licence being issued. Similarly, should the Council suspend, revoke or refuse a licence then this individual decision can be appealed to the Magistrate’s Court within the same time period. However any vehicle currently licensed has two years in order to comply with livery requirements, currently licensed vehicles will remain to be licensed, without livery, until our timescale for adoption has passed. Should the Council refuse to licence the appellants vehicle, without livery, after the adoption period has finished, or impose conditions on the vehicle’s licence relating to livery at this point, then this would be the appropriate time to make an appeal against this individual Council decision. The Magistrates Court does not create a binding legal precedent and hence even if the appeal is successful it would still be down to individual licence holders to separately challenge the livery policy via this route.

Therefore, the Council’s legal position is that the livery Policy still applies and any new vehicle, or change of vehicle must be liveried before a licence is granted. I appreciate and thank you for trying to engage reasonably with us regarding this matter. I regret that our only route should you not wish to wait the short period of time to livery your vehicle now would be for us to refuse your application to change you vehicle and for you to appeal this individual decision to the Magistrates Court. It is not for me to give you legal advice, however the risks involved in this, aside from the cost and time, are that should the Court dismiss your appeal, due to the age of your vehicle approaching the 5 year rule, that you may be left with a vehicle which you cannot licence should you apply to licence it again at a later date. As I mentioned previously we have a number of suppliers who we envisage will be able to offer livery very shortly.

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Thanks and Regards,

Mike Smith


Dear Mr Simmonds

I understand you have asked to inspect an unwrapped fleet vehicle, along with a trained paint sprayer. My instructions are that the vehicle has been sold by the Council, so unfortunately it is not available for inspection.

I would be grateful if you could clarify what you are seeking to establish by having a trained sprayer.

Yours Sincerely

Rajendra Devandran

Lawyer Litigation and Corporate

Legal Services

Dear Mr Devandran

The inspection of the vehicle is in the public interest along with the Crown Court to establish the if the wrap is necessary and if damage has accurd is due to the wrap being installed.

I can only assume that the sale of the vehicle is to avoid any inspection as it has sustainable damage. This is why I wish for a qualified vehicle sprayer to assess the damage

Regard

Benn Simmonds

Dear Mr Simmonds

Thank you for your email, the contents of which are noted. I can assure you that the sale of the vehicle is not a deliberate attempt to avoid inspection.

I would like to take this opportunity to remind you that any evidence you wish to submit is due by 20 October

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Yours Sincerely

Rajendra Devandran

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Car colour and risk of car crash injury Population based case control study Article in BMJ (online) · January 2004Car colour and risk of car crash injury: population based case control study

S Furness, J Connor, E Robinson, R Norton, S Ameratunga, R JacksonGlobally, road traffic crashes kill about 3000 people a day.1

Identification of modifiable risk factors is an important step in reducing this burden. Previous research suggests that white or light coloured cars are less likely to be involved in a crash, than cars of other colours.2 We investigated the effect of car colour on the risk of a serious injury from a crash, using a population based case control study designed to identify and quantify modifiable risk factors.

Participants, methods, and resultsThe Auckland car crash injury study was conducted in the Auckland region of New Zealand between April 1998 and June 1999.3 4 The study population comprised all drivers of cars on public (urban and rural) roads in the region. Cases (n = 571) were all car drivers involved in crashes in which one or more of the occupants of the car were admitted to hospital or died (response rate 93%). Controls (n = 588) were car drivers identified by cluster sampling of drivers from randomly selected sites on the road network, at randomly selected times, representative of all time spent driving in the study region during the study (response rate 79%). Data on car colour were available for all of the controls and all but four of the cases.

White was the most prevalent colour in both cases and controls. White, black, grey, red, and silver colour groups were relatively homogeneous with respect to shades included in each group. There was no consistent pattern in distribution of car colour by age of vehicle.

In the multivariable analysis, we assessed the effect of the following potential confounders: age of driver,

sex, educational level, ethnicity, alcohol consumption (in previous six hours), use of recreational drugs, seatbelt use, average time spent driving each week, vehicle speed, vehicle age, engine size, registration, warrant of fitness and vehicle insurance, driving licence status, road type, weather, and ambient light conditions (day, night, twilight). Confounders were included in the final model if they resulted in a change in the odds ratio of more than 5% and had no more than 5% missing data.5

We found a significant reduction in the risk of serious injury in silver cars compared with white cars in both the univariate analysis (odds ratio = 0.5 (95% confidence interval 0.3 to 0.8)) and the multivariable analysis (adjusted odds ratio = 0.4 (0.2 to 0.9); table). There was a significant increased risk of a serious injury in brown vehicles after confounders had been adjusted for (odds ratio = 2.1 (1.1 to 4.2)) and the risks for black and green cars were also raised (adjusted odds ratio = 2.0 (1.0 to 4.2) and 1.8 (1.0 to 3.6) respectively). However, green and brown colour groups were heterogeneous in terms of shades of colours included. The risk of a serious injury in yellow, grey, red, and blue cars was not significantly different from that in white cars.

CommentSilver cars were about 50% less likely to be involved in a crash resulting in serious injury than white cars. The design and methods are a reasonable approach to study the association between modifiable risk factors and injury from car crashes.

The association between silver car colour and reduced risk of serious injury Association of car colour with car crash injury in Auckland persisted after we had adjusted for major confounding factors, but the possibility of residual confounding remains. The extent to which these results are general is open to question. Increasing the proportion of silver cars could be an effective passive strategy to reduce the burden of injury from car crashes.

Section ofEpidemiology andBiostatistics, School of Population Health, University of Auckland, PrivateBag 92019,Auckland, New ZealandS Furnessresearch fellowJ Connorsenior lecturerE RobinsonbiostatisticianS Ameratunga senior lecturerR Jackson professor of epidemiology

George Institute forInternational Health, University of Sydney, Sydney, AustraliaR Nortonprofessor of public health

Correspondence to:S Furnesss.furness@ auckland.ac.nz

BMJ 2003;327:1455–6

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