Cummings v Cardiff County Council

A licensing authority may limit hackney carriage licences only where it is satisfied that there is no significant unmet demand. Even then, limitation is discretionary. A lottery is not irrational merely because earlier applications exist, and applicants have no legitimate expectation that a previous allocation method will be repeated.

Where a later decision concerns whether to remove numerical limits altogether, the authority need not consider the merits of alternative allocation systems unless that issue is relevant to the decision it has framed. An earlier defective process will not taint the later decision merely because it triggered consideration of it. The later decision must be assessed on the information, consultation and relevant factors actually before the authority.

The claimant operated a substantial number of licensed hackney carriages in Cardiff. He challenged two decisions of the defendant licensing authority.

The first decision proposed issuing six additional vehicle licences by lottery, restricted to existing licence holders. After the challenge was commenced, the authority deferred the lottery, consulted the trade and decided to rescind the lottery decision and remove the numerical limit on licences, subject to vehicle conditions. The claimant challenged that second decision, arguing that the earlier misleading treatment of a waiting list had affected it, and that the consultation and report were unfair and irrational.

1. The January decision. The report placed before the Committee did not fairly or accurately describe the historical use of the waiting list. It was therefore not a fair or safe foundation for rejecting that method of allocation. However, the decision had been rescinded, and the court rejected the remaining challenges. The use of a lottery was not irrational merely because applications had previously been deferred. Nor was the Committee required to use a merit-based system, which it was entitled to regard as difficult, cumbersome and expensive.
2. The statutory framework. Under section 16(b) of the Transport Act 1985, a licence may be refused to limit numbers only if the authority is satisfied that there is no significant unmet demand. If satisfied, the authority has a discretion, not a duty, to limit licences. If not satisfied, it cannot refuse a licence for that purpose. The court adopted the statutory principles summarised in R (on the application of Maud) v Castlepoint Borough Council [2002] EWHC 273 (Admin).
3. The October decision. The Committee was entitled to treat the issue as whether the advantages of removing numerical limits outweighed the disadvantages. It was under no obligation to consider a fair allocation method under a continuing limited scheme, because that issue did not arise on the decision as framed. The fact that the January decision and the claimant’s challenge triggered consideration of deregulation did not make any defect in the earlier process legally contagious.
4. The Committee had properly considered the consultation and arguments against deregulation. Officials were entitled to comment on the claimant’s late representations. Although the report should ideally have reminded the Committee that Halcrow had advised against deregulation, the substance of those objections appeared in the report, there was no evidence that the Committee was ignorant of them, and the omission did not render the decision unlawful.
5. Both judicial review applications therefore failed. The claimant received the costs of the first proceedings up to 7 October 2003; the Council received the remaining costs, subject to detailed assessment. Permission to appeal and a stay were refused.

First-instance judicial review proceedings concerning the Committee’s decisions of 14 January 2003 and 7 October 2003. Both applications were dismissed by the Administrative Court.