Welwyn Hatfield Borough Council v West and Central Hertfordshire Magistrates Court & Ors

An appeal from a magistrates’ court licensing decision is a rehearing de novo. The appellate court must decide the application on the facts available at the appeal and determine whether the decision below is wrong in that light. It does not conduct a judicial review of the local authority’s reasoning.

A licensing policy must be applied consistently, but the decision-maker must consider each application on its merits and whether exceptional circumstances justify departure. The applicant bears the burden of establishing an exception, having regard to the policy’s aims, rationale, fairness and consistency. The Covid-19 pandemic was exceptional, but it did not, without evidence of its particular impact, justify departing from an eight-year vehicle-age policy.

The Council refused to renew the respondents’ hackney carriage vehicle licences because their non-wheelchair-accessible vehicles had reached the eight-year age limit in the Council’s Standard Conditions.

The magistrates’ court allowed the respondents’ appeals, finding that the Covid-19 pandemic, lockdowns and their financial consequences constituted exceptional circumstances justifying departure from the policy. It considered that the licences should have been renewed for one year, but granted no continuing relief because more than a year had elapsed.

The Council appealed by way of case stated. The issues concerned the proper scope of the magistrates’ court’s rehearing, the relevance of subsequent facts, and whether the pandemic or its financial consequences justified an exception to the policy.

1. The appeal was allowed. The magistrates’ court’s decision was reversed and the respondents’ appeals against the Council’s refusals were dismissed.
2. Under section 60 of the Local Government (Miscellaneous Provisions) Act 1976, read with sections 300 and 302 of the Public Health Act 1936, the appeal before the magistrates’ court was a complete rehearing de novo. It had to decide the renewal applications for itself on the evidence and facts available at the appeal. The relevant question was whether the decision below was wrong in that light, even if it had been correct when originally made: Stepney Borough Council v Joffe and R (Hope and Glory Public House Ltd) v City of Westminster Magistrates’ Court.
3. The District Judge had instead asked what she would have decided had she been making the Council’s original decisions in 2022. Since she found that any renewal would have lasted no more than one year, and more than a year had elapsed by the appeal, the licences should not have been renewed. The Council’s refusals therefore produced the correct outcome, although for different reasons.
4. The Council was required to consider applications on their merits and to permit exceptions where justified. The court exercising the appellate jurisdiction was subject to the same obligation. It had, however, to give proper weight to the Council’s policy, its statutory responsibility, consistency and fairness to other licence-holders, and whether an exception would undermine the policy’s rationale: R (Westminster City Council) v Middlesex Crown Court and Chorion Plc and R v Chester Crown Court ex parte Pascoe and Jones.
5. In the alternative, the pandemic was exceptional but was not, by itself, sufficient. Each respondent had to prove its particular impact and explain why an exception was justified. Oral evidence could suffice, but the District Judge had dealt with the cases generically, had not considered fairness and consistency, and had not examined whether financial inability to buy a replacement vehicle was compatible with the policy’s safety, comfort and appearance objectives. Such financial exceptions risked undermining the eight-year rule.

• West and Central Hertfordshire Magistrates’ Court: On 9 February 2024, District Judge Margaret Dodd allowed the respondents’ appeals against the Council’s refusals to renew their hackney carriage licences.
• High Court (Administrative Court): The appeal by way of case stated was allowed. The magistrates’ court’s decision was reversed and the respondents’ appeals were dismissed.