Darlington Borough Council v Kaye

A licensing authority may assess whether a hackney carriage driver is a fit and proper person by reference to driving competence, including competence shown by a specified driving test. It may adopt a general policy requiring information about whether the test has been passed, provided it considers relevant matters, disregards irrelevant matters, acts reasonably and remains willing to consider individual circumstances. The test is a means of assessing fitness, not an unlawful condition attached to the licence. On a rehearing appeal, magistrates must have due regard to the authority’s lawful policy while retaining the ability to depart from it where the individual circumstances justify that course.

Darlington Borough Council refused to renew Malcolm Kaye’s hackney carriage driver’s licence because he did not provide a pass certificate for the Driving Standards Agency taxi driver test. The County Durham justices held that the certificate requirement was an unlawful condition of the licence and found that Mr Kaye was a fit and proper person.

On the Council’s appeal by way of case stated, the High Court considered whether the test requirement was information reasonably required under section 57 of the Local Government (Miscellaneous Provisions) Act 1976, or an impermissible condition, and whether the justices had to apply the Council’s policy when rehearing the appeal.

1. Appeal allowed; matter remitted. The justices had misdirected themselves. The matter was remitted to a fresh bench of magistrates to consider Mr Kaye’s appeal according to law.

2. The Council’s decision concerned whether Mr Kaye was a fit and proper person to hold a hackney carriage driver’s licence. Although possession of a driving licence for the statutory period was a basic qualification, the Council was entitled to consider driving competence more broadly. It was not restricted to evidence arising from criminal convictions.

3. The Council could set the standard by which it assessed whether an applicant was fit and proper, provided it considered all relevant matters, excluded irrelevant matters and reached a decision open to a reasonable licensing body. It could adopt a general policy requiring applicants to have passed the specific DSA taxi driver test, provided the policy was lawfully adopted and the Council remained willing to listen to individual representations. The approach in British Oxygen Company v Board of Trade (1971) AC 610, 625D, supported that qualification.

4. The requirement to provide information about whether the DSA test had been passed was information reasonably required under section 57. The test requirement was therefore not a condition precedent to the grant or renewal of a licence. The reasoning in Wathan v Neath and Port Talbot County Borough Council [2002] EWHC 1634 (Admin) applied equally to a purported condition precedent.

5. A magistrates’ appeal is by way of rehearing, but where the authority has a lawful policy the magistrates must have regard to it and should not lightly reverse the authority’s decision. They must approach the matter as if standing in the authority’s shoes, while considering whether the particular facts justify departing from the policy. The justices failed to do so. That conclusion was consistent with Sagnata Investments Ltd v Norwich Corporation (1971) 2 QB 614 and The Queen on the application of Westminster City Council and Middlesex Crown Court and Chorion plc and Fred Proud (2002) EWHC 1104 (Admin).

1. High Court (Administrative Court): appeal by way of case stated allowed. The justices’ decision was set aside and the respondent’s appeal was remitted to a fresh bench of magistrates.