Newcastle City Council, R (on the application of) v Berwick-Upon-Tweed Borough Council & Ors

A licensing authority exercising its discretion to license hackney carriages must consider whether the vehicle will ply for hire in its area and whether it will operate predominantly or entirely elsewhere. The authority may refuse a licence on those grounds, provided it exercises its statutory discretion lawfully and with regard to public safety. It may seek information about intended use under the Local Government (Miscellaneous Provisions) Act 1976. The court also followed Brentwood Borough Council v Gladen in holding that a local authority could not prosecute an operator merely because properly licensed hackney carriages were used for pre-booked hirings in its district.

Newcastle challenged Berwick’s practice of granting hackney carriage licences to proprietors who lived and operated principally outside Berwick-upon-Tweed. Newcastle argued that Berwick had to consider intended geographic use when exercising its power under section 37 of the Town Police Clauses Act 1847. A related issue concerned whether Newcastle could prosecute private hire operators using hackney carriages licensed by a remote authority to fulfil pre-booked hirings in Newcastle under section 46(1) of the Local Government (Miscellaneous Provisions) Act 1976.

The central questions were the scope of Berwick’s licensing discretion and the application of the private hire licensing provisions to hackney carriages used for pre-booked work.

1. Section 37 discretion. The court held that section 37 of the Town Police Clauses Act 1847 confers a discretion. That discretion must be exercised to promote the policy and objects of the legislation, including public safety, effective local enforcement, and the local character of hackney carriage licensing.
2. Intended use. Berwick was obliged to have regard to whether an applicant intended the vehicle to ply for hire within Berwick’s area and whether it was intended to be used entirely or predominantly for private hire remotely from that area. Berwick could refuse a licence on either or both grounds. The court did not prescribe a fixed policy or hold that refusal was invariably unlawful or mandatory in every case.
3. Information. Berwick could require information under section 57 of the Local Government (Miscellaneous Provisions) Act 1976 to establish intended use. It was not essential that the power be used, and the authority retained responsibility for deciding what information was necessary.
4. Pre-booked hirings. The court recognised conflicting reasoning in Britain v ABC Cabs (Camberley) Ltd, Kingston Upon Hull City Council v Andrew Wilson, Benson v Boyce and Brentwood Borough Council v Gladen. It followed Gladen, which was not shown to be obviously wrong, and held that Newcastle could not prosecute section 55 operators using properly licensed hackney carriages to fulfil pre-booked hirings in Newcastle merely because the hackney carriage licence had been granted by a remote authority.
5. Relief. The court granted declarations reflecting the obligations and powers under section 37 and section 57. Berwick was ordered to pay half of Newcastle’s costs.