This was the conclusion of Christopher Symons QC yesterday giving judgement in the High Court judicial review claim brought by Newcastle city council against Berwick-upon-Tweed borough council.

Newcastle licences around 780 hackney carriage proprietors and 1196 drivers; it has also imposed a limit on the number of hackney carriages under section 16 of the Transport Act 1985 as it is satisfied there is no significant unmet demand for hackney carriages within the city of 276,000 people. (The wider Tyne and Wear conurbation has a population in excess of one million people).

Berwick, on the other hand, has a population of 26,000 people but in August this year had 672 hackney carriage proprietors on its books – compared to only 46 in April 2006 and 148 in April 2007. The court heard there is one hackney carriage for every 42 Berwick resident, and only about 74 of the 672 current vehicles were likely to be primarily used within the Borough – 247 proprietors actually had a home address registered in Newcastle upon Tyne.

BERWICK’S ARGUMENT
Berwick took the view that it had no discretion to refuse to issue hackney carriage vehicle licences providing all the relevant statutory requirements were satisfied for granting a licence. Not living in Berwick or intending to ply for hire within its district were not sufficient grounds for refusal.

Berwick received a flood of applications, and the court observed that may have been because of the lower cost of licences charged by Berwick as well as other reasons relating to the different standards and conditions Berwick imposed. The court was told there was a danger of Berwick becoming a national issuer of hackney carriage licences.

Counsel for Berwick submitted to the court that the Act made no reference to the ‘intentions’ of the applicant, and therefore if the vehicle was going to be used in a lawful manner it had no power to stop that lawful use and any enquiry as to the ‘use’ of the vehicle would be irrational, extraneous and irrelevant (an argument supported by the 500-strong firm Blue Line Taxis, who were interested parties in the proceedings).

LOCAL NATURE OF LICENSING
The judge said that parliament had decided from the outset of hackney carriage licensing that it was a local and not a national function. The main purpose behind the governing Town Police Clauses Act 1847 and the Local Government (Miscellaneous Provisions) Act 1976 is public safety – passengers and other road users. The right to ply for hire is limited, by the licence, to the immediate locality and no right to ply for hire is given for any wider area.

Other factors point to the local nature of the function: the requirement to supply the place of abode of the applicants and any changes in that address; the requirement to state in writing the address of where the hackney carriage is kept when not in use to allow testing and inspection by the licensing authority; the ability for hackney carriages to be tested within the area that they operate; the ability to set local standards and bye-laws; and that hackney carriage drivers are not obliged to carry anyone beyond the licensing authority area or outside the prescribed area at all.

DANGERS OF REMOTE WORKING
The court held there are a number of ‘at least, potentially undesirable consequences’ of allowing hackney carriages to operate as private hire vehicles some distance remote from the area in which they are licensed.

The licensing authority will not easily keep their licensed fleet under observation. It will ‘be carrying out its enforcement powers from a distance’. The licensing authority for the area where the hackney carriages are being used will have no enforcement powers over the vehicle, even though it is being operated within its borders. The hackney carriage from the remote area will not be subject to the same conditions and byelaws as the local vehicles.

FINDINGS
Berwick in exercising its discretion under section 37 of the 1847 Act to grant hackney carriage vehicle licences should take into account where the vehicles will be used, the court held.

The judge said: ‘The byelaws and conditions which apply to Berwick’s hackney carriages are largely there to promote safety and to ensure the vehicles are easily identifiable. They are made and imposed to protect the public and in particular the public in the Berwick-upon-Tweed area. If the hackney carriages are used in areas remote from Berwick-upon-Tweed enforcement will be very difficult and impracticable.

He continued: ‘…a local authority, properly directing itself, is entitled and indeed is obliged, to have regard to whether the applicant intends to use the licence to operate a hackney carriage in that authority’s area, also having regard to whether the applicant intends to use the hackney carriage predominately, or entirely, remotely from the authority’s area.

He added he was also anxious not to direct how Berwick or any other local authority should exercise their discretion, although he did not go so far as saying that Berwick’s practise of issuing licences for hackney carriages outside of its area as being unlawful. He did not make a declaration as to whether Berwick had a policy to grant licences for use remote from their area.

He ordered that Berwick should pay half of Newcastle’s costs (to be assessed).

REACTION
After the four day hearing, Newcastle said they were ‘delighted’ at being successful in their action. Director of public protection Steven Savage said: ‘They should only licence hackney carriages which intend to ply for hire in their area. We are also pleased as the successful participant in the case to have costs awarded to us in respect of this part of the proceedings’.

Berwick also welcomed the decision, pointing out that it was an issue that in 161 years of taxi licensing had never before come before the court.

Berwick-upon-Tweed Borough Council will prepare a policy setting out how the Council proposes to deal with applications for the renewal of hackney carriage licences; for new licences by people who already have a hackney carriage licence; and for new licences by other people.

Once the Council has a draft policy, consultation will take place with the general public, the taxi trade and other councils including Newcastle City Council.

As Berwick will cease to exist on 31 March 2009 the council said it did not intend to take any action to prematurely terminate any current hackney carriage licences.

Licensing Manager David Wilson said: ‘Berwick-upon-Tweed borough council has always recognised that law evolves and accordingly is taking steps to ensure that it will probably be the first council in the country to address the issues identified by the judge.’