Case No: CO/4746/2004
Neutral Citation Number: [2004] EWHC 2836 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday, 7 December 2004

Before :

THE HONOURABLE MR JUSTICE WILKIE
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Between :

	DARLINGTON BOROUGH COUNCIL	Claimant	
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	MALCOLM KAYE	Defendant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Sam Grodzinski (instructed by Darlington Borough Council) for the Appellant
Jill Brown (instructed by Rowley Ashworth) for the Respondent
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Judgment
Mr Justice Wilkie : 

This is an appeal by way of case stated from a decision made on 13 July 2004 by the Justices for the County of Durham.   The Justices upheld the appeal by Mr Kaye against the refusal of the appellant council to renew his licence as a driver of a hackney carriage.   
Factual background
The respondent has worked as a hackney carriage driver in Darlington since 1970.   He has held a full driving licence for 35 years.   He has never been the subject of a complaint from a passenger.   In that 35 years of driving he has received one three point penalty on his licence arising from a speeding conviction dated 9 March 2002.   
Each year the respondent is required to renew his licence to drive a hackney carriage.   Prior to 2002 in order to do so he was required to complete an application form with details of his name and address, date of birth, and previous hackney carriage licence particulars.   He was also required to submit a criminal record check signed by a solicitor and a medical certificate which had to be renewed every three years.   
On a date in September 2002, the precise date being unclear, the appellant passed the following resolution:
a)  That the council’s current policy be amended to introduce the Driving Standards Agency taxi test as a pre requirement of any grant of hackney carriage and private hire driver licences for those drivers who have driven hackney carriages or private hire vehicles for less than six months together with experienced drivers who have allowed a licence to lapse, the proposed start date for this group of drivers being 4 November 2002.
b)   The council’s current policy be amended to introduce the Driving Standards Agency taxi test as a requirement for the renewal of all hackney carriage and private hire licences for those drivers whose medical and/or police check are due, the proposed start date for this group of drivers being 1st April 2003.
c)  That drivers be asked to pass the Driving Standard Agency test on one occasion only.
d)  That the use of the Driver Improvement Scheme be approved as a disciplinary tool that may be used by the licensing committee as an alternative to suspension for drivers with nine or more penalty points or a history of poor driving, the proposed start date being the November 2002 licensing committee and that the Director of Development and Environment make the necessary arrangements to establish a referral system for taxi drivers to the Durham, or alternatively the Cleveland, national driver improvement scheme as outline in paragraph 30 of the submitted report.
The reasons annexed to the minute recording these decisions read as follows:-
a)  To raise the standard pf driving skills for the benefit of all road users.
b)  To provide reassurance to the public and the fare paying passengers that all drivers have achieved the necessary minimum professional standard of driving skill.
Before taking this decision the council conducted a public consultation exercise seeking the views of a representative sample both of the general public and of those in the trade.    The outcome of that was a decisive majority of members of the general public in favour of such a change and an equally decisive majority of those in the trade opposed to such a change.   The council had before it a report from the Director of Development and Environment which included the following paragraph:-
“The DSA have advised officers that there are currently twenty five local authorities using the DSA driver test and they are testing six hundred drivers per month.   The pass rate average nationally is 48% (with a wide variation in pass rates in different areas – between 38% and 86%).   This difference appears due to the preparation made by drivers.   Licensing Officers in Leeds have advised that some of their private hire operators are employing advanced driving instructors to improve driver’s skills in advance of the test and this has had the benefit of also reducing accident rates.”
The magistrates had in evidence before them a document entitled “The Driving Standards Agency taxi driver test progress report”.   That showed the results of the taxi driver test from November 2002 through to March 2004.   The figures showed, for each quarter, a pass rate ranging from 41% to 59%.   This report updated the information which had been presented to the council.   In particular it records that in 2003 to 2004 there were forty five local authorities using the DSA driver test and seven thousand drivers were tested with a pass rate of 50%.   It goes on to say the DSA have indicated that the pass rate for taxi drivers could be significantly improved by drivers better preparing for the test.    The council established in March 2003 a free driver assessment scheme with funding from the local transport plan.   The written assessments are carried out by qualified advance driving instructors based in Darlington who have been placed on an approval list.   Ninety seven of the one hundred and seventy seven vouchers issued in the twelve month period up to 1 April 2004 had been redeemed.   The local pass rate is the same as the national average.   
The report sets out in summary form objections to the DSA test.   It says as follows:-
“The policy requiring all drivers to prove competence of driving skills by means of a DSA driver pass certificate continues to be viewed by many applicants to be an unnecessary and unreasonable burden.   It is claimed that many drivers are leaving the trade rather than take the test.   Private hire operators also claim that due to a general shortage of drivers they are unable to run the number of vehicles needed by customers particularly late at night.”
That report also includes a section concerning issues associated with the implementation of the DSA test.   It says as follows:-
“Officers implementing the policy routinely refused to renew driver licences where the applicant is unable to provide a DSA pass certificate.   An existing driver, in such a position applying for a renewal, may formally appeal against the decision to the magistrates’ court and the council is obliged to issue a licence until the appeal is heard.   Most drivers following their appeal procedure have obtained a pass certificate and then withdrawn their appeal.   One driver, Malcolm Kaye, declared that he will not take the test, and license renewal was refused is, with the support of his trade union, challenging the council policy by formally appealing to the courts.”
The council, after an initial wrinkle, treated Mr Kaye’s application to renew his license from 18 November 2003 as one which fell within the requirement that, pursuant to paragraph (b) of the resolution, in order to be granted needed to be supported by the production of a DSA pass certificate.   Mr Kaye did not produce such a pass certificate, as he had decided not to take the test.   Accordingly on 14 November 2003 the council wrote to Mr Kaye as follows:-
“As properly authorised officer of the council I have decided to refuse your application for grant of a hackney carriage driver license and the reason is:
you have failed to meet the council’s requirement that you provide a DSA taxi driver pass certificate with your application for grant of a hackney carriage driver license.   
Section 51 of the Local Government (Miscellaneous Provisions) Act 1976 states that a District Council shall not grant a license unless they are satisfied that the applicant is a fit and proper person to hold a driver’s license.   Section 57 further states that a District Council may require any application for a license under the Act of 1847 or under this part of this Act to submit to them such information as they may reasonably consider necessary to enable them to determine whether the license should be granted and whether conditions should be attached to any such license.   The DSA pass certificate is part of the information that Darlington Borough Council requires to make a grant.”
The letter went on to inform Mr Kaye of his right to appeal to the Magistrates’ Court.   It also included a special note as follows:-
“The council reviewed its licensing policy in September 2002 introducing the requirement for any applicant to provide a DSA taxi driver pass certificate to raise the standard driving skills for the benefit of all road users and to provide reassurance to the public and the fare paying passengers that all drivers have achieved the necessary minimum professional standard of driving skill.”
The decision of the Magistrates’ Court
The magistrates, as requested, have stated a case for the purposes of this appeal.   The magistrates begin by setting out a statement of the facts which is similar to that which I have already set out and which was not in dispute.   It set out the respective contentions of the appellant and respondent.   The case for the appellant was that the requirement to supply a DSA pass certificate was a request for information which they reasonably considered necessary to enable them to determine whether the applicant was a fit and proper person to hold a hackney carriage driver’s license.   The respondent’s submission was that the requirement for a DSA pass certificate was more than a request for information rather it was a condition attached to the grant of the license.   The respondent relied on the authority of the case of Wathan v Neath and Port Talbot County Borough Council [2002] EWHC 1634(Admin) as authority for the proposition that a licensing authority is not permitted to attach conditions to the grant of a hackney carriage driver’s license.   The requirement that the applicant undertake a stringent test of his ability to drive amounted to more than a request for information, it amounted to a condition.   
The magistrates formed the opinion that the requirement upon the respondent to supply a DSA pass certificate went further than a mere request for information and was in fact a condition upon the grant of hackney carriage driver’s license.   Their conclusion was that the requirement for a DSA pass certificate was unlawful and the evidence they had heard convinced them that the respondent was a fit and proper person to hold a license.   Accordingly they upheld the complaint.   
The magistrates formulated two questions for the opinion of the High Court.   I set them out in reverse order to that in which they appear in the case stated as it appears to be more logical to do so.   They were as follows:
b)  Was the requirement to pass the DSA driving test a request for information as envisaged by section 57 Local Government (Miscellaneous Provisions) Act 1976 or did it amount to a condition to the grant of a license which must be fulfilled before the Borough Council would consider whether or not to grant a hackney carriage driver’s license? 
a)  Was the information as to whether an applicant or a hackney carriage driver’s license had passed the DSA driving test reasonably required and necessary to establish whether the respondent was a fit and proper person to hold a license under section 59 Local Government (Miscellaneous Provisions) Act 1976?
The statutory scheme
The power to license hackney carriages is conferred on Commissioners pursuant to section 37 of the Town Police Clauses Act 1847.   By section 2 of that Act the Commissioners are defined and it is common ground that the licensing committee of the District Council constitutes the Commissioners for the relevant area.
The Commissioners have powers to make bye laws for a number of purposes including regulating the conduct of the proprietors and drivers of hackney carriages and such detailed matters as what badges they are required to wear, the hours in which the may exercise their calling, the manner in which the number of each carriage shall be displayed an so on.   The Commissioners by means of bye laws regulate the general conduct of the hackney carriage trade within their area.   It is common ground that there is no power for them to impose conditions on individual licenses.   In this respect the powers of the Commissioners relating to hackney carriages is different from that of the same council when it deals with licenses for private hire cars.
Section 59 of the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976 Act”) provides amongst other things as follows:-
(1)  Notwithstanding anything in the Act of 1847, a District Council shall not grant a license to drive a hackney carriage – (a) unless they are satisfied that the applicant is a fit and proper person to hold a driver’s license; or (b) to any person who has not for at least 12 months been authorised to drive a motor car, or is not at the date of the application for a driver’s license so authorised.
(2)  Any applicant aggrieved by the refusal of a District Council to grant a driver’s license on the ground that he is not a fit and proper person to hold such license may appeal to a magistrates’ court.
A person is authorised to drive a motor car if he holds a standard licence granted under part 3 of the Road Traffic Act 1988 not being a provisional license.( Subsection 1B)
Section 61 of the 1976 Act provides amongst other things as follows:-
(1)  Notwithstanding anything in the Act of 1847 or in this part of this Act, a District Council may suspend or revoke or…refuse to renew the licence of a driver of a hackney carriage…on any of the following grounds- (a) that he has since the grant of the licence – (i)  been convicted of an offence involving dishonesty, indecency or violence; or (ii)   been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this part of this Act; or (b) any other reasonable cause….
(3)  any driver aggrieved by a decision of a District Council under this section may appeal to a magistrates’ court.
Section 57 of the 1976 Act provides amongst other things as follows:-
(1)  A District Council may require any applicant for a license under the Act of 1847 or under this part of this Act to submit to them such information as they may reasonably consider necessary to enable them to determine whether the licence should be granted…
(2)  Without prejudice to the generality of the foregoing sub-section – (a) a District Council may require an applicant for a driver’s license in respect of a hackney carriage… - (i)  to produce a certificate signed by a registered medical practitioner to the effect that he is physically fit to be the driver of a hackney carriage or a private hire vehicle; and (ii)  whether or not such a certificate has been produced, to submit to examination by a registered medical practitioner selected by the District Council as to his physical fitness to be the driver of a hackney carriage…
It is common ground that the power which the District Council has to refuse to renew the license of a driver of a hackney carriage, for amongst other things any reasonable cause, is co-extensive with the obligation on a District Council not to grant a license to drive a hackney carriage unless they are satisfied that the applicant is a fit and proper person or that the applicant has not been authorised to drive a motor car for at least 12 months or at the date of the application is not so authorised.
It follows, therefore, that the decision which the District Council had to take concerning the respondent, given that he was a person, who for at least 12 months had been authorised to drive a motor car and at the date of his application was so authorised, was whether they were satisfied that he was a fit and proper person to hold a driver’s license.   Unless they were so satisfied the District Council did not have the power to renew his license.
It was accepted in the course of the argument by Miss Brown acting for the respondent that the District Council was entitled in that exercise to have regard to evidence casting doubt on the applicant’s fitness by reference to his competence or conduct as a driver.   That this was so must follow from the fact that, pursuant to section 61, the Council had powers of suspension or revocation during the currency of a license and that it was commonplace for those powers to be exercised by reason of a driver having driving convictions the sanction for which stopped short of disqualification from driving.   Furthermore it would follow that it would be lawful for the District Council to require any applicant for renewal of a licence to require that person to submit such information as they may reasonably consider necessary to enable them to determine whether the license should be renewed.   That information would plainly include information concerning driving convictions.      
It is also not in dispute that, pursuant to section 57, the District Council may require an applicant to submit a medical certificate and/or to submit to examination by a registered medical practitioner so that they might assess his physical fitness to be the driver of a hackney carriage for the purposes of considering whether the applicant was a fit and proper person to hold a license.
The dispute between the parties amounts to this:  the respondent contends that, provided the applicant for a license satisfied the basic qualification of holding a driver’s licence for 12 months he is not required to meet any further more stringent standard by reference to any different examination.    
The appellant on the other hand argues that the District Council is entitled to have a policy that in considering whether a person is a fit and proper person to hold a license they should have satisfied a standard of driving set by the DSA and that it is therefore necessary for them to require that an applicant provide information whether he has satisfied that test requirement.   Mr Grodzinski for the appellant has indicated, upon instructions, that this is a policy but that the District Council is prepared to listen to any argument as to why the policy should not apply in a particular case.   For example it might be argued that an applicant has very recently passed an equivalent test, though not one examined by the DSA.   Miss Brown on the other hand has conceded that her submission would be the same even if the appellant’s position were stated in terms that it would, as a matter of policy, generally require such a test to have been passed but would be prepared to examine an individual case on its merits on grounds such as have been indicated by Mr Grodzinski.   Accordingly, this is not a case where the parties are in conflict over whether the position of the appellant is one which is unlawful by reason of having fettered their discretion, or having delegated a potentially decisive element to the exercise of their power to decide whether an applicant is a fit and proper person to a third party namely the DSA.   The dispute is more fundamental than that.   The respondent says that, whilst matters of individual conduct or competence evidenced by driving convictions may be taken into account in determining whether a person is a fit and proper person to hold a licence,  what the appellant cannot lawfully do is to require as a condition precedent to the grant of a license that the applicant has passed a more stringent driving examination than that which he has passed in order to satisfy section 59 1 B of the 1976 Act.
The respondent relies on Wathan v Neath and Port Talbot County Borough Council already referred to.   It is common ground that this is authority for the proposition that a licensing authority cannot impose a condition upon the grant of a license.   That case concerned the imposition of a condition subsequent to the grant of a licence.   In my judgment it applies equally to any requirement that an applicant satisfy a condition precedent.   The sole question for the District Council is whether it is satisfied that the applicant is a fit and proper person.   
In my judgment the District Council, in deciding whether it is satisfied that an applicant is a fit and proper person, is entitled to have regard to the applicant’s standard of driving.   It is not to be artificially limited to considering evidence about that standard which happens to have arisen because of criminal convictions.   Nor is it precluded from having any regard to an applicant’s standard of driving merely because he has held a driver’s license for 12 months.   It is a matter for the District Council to set the standard of what will amount to a fit and proper person by reference to, amongst other things, the applicant’s standard of driving provided in so doing they taken into account all relevant matters and leave out of account irrelevant matters and come to a decision to which a reasonable licensing body could come.   Furthermore it is entitled to have a policy which it applies in the generality of cases provided it is prepared to be “willing to listen to anyone with something new to say” (see Lord Reid in British Oxygen Company versus Board of Trade (1971) AC 610, 625D).
It follows, in my judgment, that the appellant was entitled, after due consideration and proper consultation, which plainly took place, to adopt a policy that it would not regard a person as a fit and proper person to have a license who had not first passed the specific DSA taxi driver test.   It further follows that, given that policy, it was entitled to consider that it was reasonably necessary for it, in order to form a view whether a person was a fit and proper person to have a license, to require information from an applicant whether he or she had passed that test.
Thus, addressing the questions posed by the magistrates in their case stated, in my judgment the requirement to pass the DSA driving test was not a condition attached to the grant of a license which must be fulfilled before the Borough Council would consider whether or not to grant a hackney carriage driver’s license.   Rather, it was a policy which the District Council applied when considering whether an applicant was a fit and proper person to whom to grant or renew a license.   Given that policy, the District Council was reasonably entitled to consider it necessary that it should receive information whether the applicant had or had not passed the DSA driving test.   Accordingly, the requirement that the applicant should so inform the District Council was a requirement for information within section 57 of the 1976 Act.
It therefore follows that, in my judgment, the magistrates misdirected themselves in concluding that the requirement for that information was outwith the terms of the statute.   
A supplementary argument appeared at one stage to be advanced by the respondent.   This was to the effect that, as the hearing before the magistrates was a rehearing rather than a by way of a judicial review of the decision of the District Council, then the magistrates were capable of reaching a De Novo decision whether the respondent was a fit and proper person to hold a licence disregarding the policy of the District Council.   It is apparent that this is what the magistrates did in upholding the respondent’s appeal.   
It has become apparent, however, by reason of the citation by the respondent of the case of Sagnata Investments Ltd versus Norwich Corporation (1971) 2QB 614 and by the appellant of the Queen on the application of Westminster City Council and Middlesex Crown Court and Chorion plc and Fred Proud 92002) EWHC 1104 (Admin) that it is common ground that where magistrates consider an appeal by way of rehearing against a decision of a local authority, which has a policy, that they ought to have regard to the fact that the local authority has a policy and should not lightly reverse the local authority’s decision or, to put it another way, the magistrates must accept the policy and apply it as if it was standing in the shoes of the council considering the application.   It is, of course, obvious that such an approach is predicated on the lawfulness of the policy.   Given that this is the undisputed position as a matter of law, it is apparent that the magistrates, though rightly considering the respondent’s appeal as a rehearing, erred in failing to have regard to the District Council’s policy in considering whether the respondent was a fit and proper person to hold a licence.   
It has been urged on me by the appellant that the position is sufficiently clear cut that I should decide the question whether the respondent is a fit and proper person having regard to the policy of the District Council and in the light of the facts that are disclosed in this appeal.   I am not persuaded that that would be the correct course.   It is clear that the magistrates heard a great deal of factual evidence and had regard to that.   This material is not before me.   As I have indicated, the District Council has a policy which it does not apply in an entirely fettered manner.   In accordance with the law it is always prepared to listen to what an individual applicant has to say.   The fact that at the moment it does not appear that there is anything much that this respondent could say which would persuade the District Council, or the magistrates having proper regard to that policy, to depart from that lawful policy in his case does not mean that I should preclude his ability to persuade the magistrates otherwise.   There may be matters of fact not before me which the respondent would be able to deploy before the magistrates which would persuade them, notwithstanding the policy to which they must have due regard, that nonetheless his appeal against the District Council’s refusal of his licence should be upheld.
It therefore follows that the appeal must be allowed and the order of the Court is that the matter be remitted to a fresh bench of magistrates for them to consider the respondent’s appeal in accordance with the law.