[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jones & Anor v First Greater Western Ltd [2014] EWCA Civ 301 (18 March 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/301.html Cite as: [2014] EWCA Civ 301

[New search] [Printable RTF version] [Help]

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Claim No.: 2BS30445

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/03/2014

Lord Justice Floyd:

Introduction

1. In these proceedings, the appellants Patricia Jones and Mourad Tighilt, who sue on behalf of themselves and all other members of the Bristol branch of the National Taxi Association, claim that the introduction by the respondent First Greater Western Limited of a taxi permit scheme at the public taxi rank at Bristol Temple Meads station ("BTM") was unlawful. After a trial in Bristol, HHJ McCahill QC sitting as a High Court Judge, held that the permit scheme was lawful and justified.
2. The appellants' primary case was that the statutory scheme which enabled the designation of a public taxi stand on private land subject to the landowner's consent created a right of access for the benefit of licensed taxi drivers and their vehicles which continues so long as the public taxi stand remains designated as such.
3. Underlying the judge's rejection of the appellants' case was the fact that the respondent as lessee of the land at BTM had the right to restrict access on such terms as it saw fit, including the restriction of access for taxi drivers and their vehicles if the driver was not in possession of a valid permit for which it could require the drivers to pay. The statutory scheme did not operate to prevent the respondent from exercising its rights as a landowner in this way. The judge also held, as an alternative ground, that the respondent (as the person, for the purpose of the railway byelaws, entitled to determine who can access the station to solicit custom or employment) could validly impose on licensed taxi drivers the obligation to apply and pay for a permit to ply for hire at BTM.
4. On this appeal, for which I granted permission on the papers, Mr David Fletcher argued the case for the appellants and Mr Jonathan Small QC with Mr Ewan Paton argued the case for the respondent.

The statutory scheme and the taxi byelaws

5. The Town Police Clauses Act 1847 ("the 1847 Act") contains provision for the "commissioners" (in this case, in effect, Bristol City Council) to license "hackney carriages". Unless quoting from legislation I will, for convenience, use the shorter term "taxi" in this judgment. Section 37 of the 1847 Act provides:

"The commissioners may from time to time licence to ply for hire within the prescribed distance, or if no distance is prescribed, within five miles from the General Post Office of the city, town, or place to which the special Act refers, (which in that case shall be deemed the prescribed distance) hackney coaches or carriages of any kind or description adapted to the carriage of persons."

6. Section 68 of the 1847 Act provides that the commissioners may make byelaws for certain purposes including regulating the conduct of the proprietors and drivers of taxis, the wearing of badges, the number of persons to be carried, the fixing of fares, and:

"for fixing the stands of such hackney carriages, and the distance to which they may be compelled to take passengers…"

7. It is common ground that the 1847 Act did not apply to private property. Since railway stations were or included private property, taxis congregating on railway stations were not regulated. Section 76 of the Public Health Act 1925 ("the 1925 Act"), as originally enacted, provided for the extension of the applicability of the provisions of the 1847 Act and any byelaws made thereunder to taxis plying for hire on any railway station or railway premises as if that "railway station or those railway premises were a stand for hackney carriages or a street." Section 76 of the 1925 Act was, however, subject to the following proviso:

"(b) Nothing in this section shall empower the local authority to fix the site of the stand or starting place of any hackney carriage in any railway station or railway premises, or in any yard belonging to a railway company, except with the consent of that company."

8. The Local Government (Miscellaneous Provisions) Act 1976 ("the 1976 Act") provided, by section 63(1), as follows:

"For the purposes of their functions under the Act of 1847, a district council may from time to time appoint stands for hackney carriages for the whole or any part of a day in any highway in the district which is maintainable at the public expense and, with the consent of the owner, on any land in the district which does not form part of a highway so maintainable and may from time to time vary the number of hackney carriages permitted to be at each stand."

9. By this means the 1976 Act extended the power of local authorities to appoint taxi stands, with the consent of the owner of the land, on any land not forming part of the highway. It also empowered the authority to vary the number of taxis permitted to be at each stand.
10. The power to appoint and vary numbers was subject, by section 63(2), to a duty to consult the police and the public. Section 63(4) of the 1976 Act provided that any taxi byelaws for fixing stands for taxis made before the date that Act came into force were to cease to have effect but were deemed to have been appointed under this section. The relevant sections of the 1976 Act came into force in Bristol with effect from 1 April 1987.
11. Bristol's taxi byelaws, which are similar to equivalent taxi byelaws operating in other large cities, contain provisions regulating the conduct of taxi drivers plying for hire within the district. Byelaw 3 is of some relevance:

"The driver of a hackney carriage shall, when plying for hire in any street and not actually hired:

(a) proceed with reasonable speed to one of the stands fixed by the byelaw in that behalf."

12. Byelaw 16 provided for specified taxi stands. Byelaw 21 made breach of any of the byelaws an offence.
13. The only authority on these provisions to which we were referred in any detail was Hulin v Cook [1977] RTR 345. In that case the defendant taxi driver was charged with breach of a railway byelaw prohibiting plying for employment while on the railway except with the consent of an authorised person. The defendant was the holder of a licence granted by Cardiff City Council under that council's taxi byelaws. The byelaws appointed a taxi stand at Cardiff Central Square, and there was no stand at Cardiff Central Square other than at Cardiff General Station which was owned by British Railways Board. The defendant accepted that he did not have the authorisation of the Board, but argued that his licence from the City Council entitled him to ply for hire at any of the appointed taxi stands. The Queen's Bench Divisional Court (Lord Widgery LCJ, Melford Stevenson and Slynn JJ), rejected that argument. Lord Widgery reasoned that the 1847 Act was restrictive in nature and granted no rights. The effect of the Act of 1925 was to extend the licensing system to railway premises, but "nothing in the way of a further right was thereby conferred". He said:

"Once the Act of 1925 was passed, the position in Cardiff, and for all I know in other places as well, was simply this. The typical taxi driver who wished to serve customers in the area, whether they came from airport, railway stations, bus stations or elsewhere, would need the ordinary 1847 Act licence in order to carry on his trade in Cardiff at all. In addition to that, if he wanted to serve passengers in Cardiff General Station he would have to make his peace with the Railways Board in as much as he would require their consent under their byelaws before he could ply for hire within the confines of the railway property. That, in my understanding of the position, is how the law now stands, and it follows from that that the magistrate was in error when he considered, as he evidently did from the form of his case, that the effect of section 76 was to give a new right which had not previously existed in that it licensed taxi drivers to ply for hire in Cardiff. "

14. The judge placed considerable weight on this authority in reaching the conclusion that the legislation conferred no right on taxi drivers to access the station to arrive at the stand.

The history of permits at BTM

15. Prior to 1974 there was no taxi stand appointed under the taxi byelaws at BTM. The taxi arrangements at BTM were purely private and contractual. They required drivers to obtain a permit from British Rail in return for a fee.
16. From 1 April 1974 a temporary and experimental scheme was put in place the terms of which were set out in a document dated 10 May 1974. Its principal terms were:

"(1) That [BTM] was to be open and free of charge to all public hackney carriages licensed by City Council of Bristol.

(2) That for an experimental period the British Rail contract system operating at [BTM] be formally terminated on 31 March 1974 and that no charge be made to hackney carriage drivers operating from [BTM] after 25 March 1974.

(3) During the period of experiment the City Council of Bristol be given the consent to enable the Taxi stand at [BTM] to be treated as a public stand and thus become temporarily subject to the same byelaws as other taxi stands in the City…

(8) That after the period of twelve months mentioned in paragraph (7) above British Rail shall have the right to withdraw from the arrangements set out in this document and agreed in the event of the management of British Rail deciding that it would be in the best interests of British Rail customers so to do."

17. On 30 October 1974 Bristol City Council amended byelaw 16 so as to add to the list of designated taxi stands 2 stands for 46 taxis at BTM (a stand for 4 taxis on the north-east side of the station approach and a stand for 42 taxis in the central area). The amendment to the byelaw was confirmed by the Secretary of State on 5 December 1974 and thereupon came into effect.
18. British Rail attempted in 1985 and again in 1991 to reinstate a private permit scheme, but did not succeed in doing so. The reinstatement of the scheme was opposed by Bristol City Council and Bristol taxi drivers, using arguments similar to those deployed by the appellants before us, but without recourse to legal proceedings.
19. In 2006 the respondent became the lessee of BTM. On 4 November 2011 it notified all licensed taxi drivers of its withdrawal of permission to access the BTM stands and the intended implementation of a permit scheme from 1 February 2012. The respondent has not purported to withdraw consent to the continued appointment of the taxi stands at BTM.
20. On 1 March 2012, a month later than planned, the new scheme purportedly came into effect. An annual charge of £375 was proposed although this was planned to rise.

The arguments on the appeal

21. The case for the appellants was described by Mr Fletcher as one of statutory interpretation. Although he said that it was ultimately a question of interpretation of all three Acts and the byelaws, he was inclined to accept that the matter could be argued equally well by reference to section 76(b) of the 1925 Act or section 63(1) of the 1976 Act. Although expressed in different words, both provisions required the consent of the landowner before the stand was fixed on private land. He submitted that once a taxi stand is fixed pursuant to the legislation under the relevant taxi byelaws it becomes a public stand freely accessible by any licensed taxi driver. The stand remains freely accessible until the stand ceases to be designated by byelaw. The imposition of a permit scheme, because it constituted an inhibition on free access, was unlawful and could be restrained at the suit of a private person specially affected by it.
22. Mr Fletcher submitted that this conclusion could be arrived at by a process of necessary implication from the requirement for the landowner's consent. The consent to the fixing of the stand (and the consequent amendment of the byelaw) was a single consent which necessarily carried with it the right of unrestricted access to licensed taxi drivers onto the land. The landowner could not withdraw its consent to access without also withdrawing its consent to the fixing of the stand and the making of the byelaw. In this way, he submitted, one could not lawfully superimpose a private scheme at a designated public stand. Stands had to be public or private: hybrids such as those proposed at BTM were strictly forbidden.
23. Mr Fletcher also submitted that Hulin v Cook (supra) did not decide the question in issue here. The argument raised and decided in that case was that the extension of the licensing regime to railway premises had, by itself, created a right of access which was sufficient to amount to consent from the landowner to ply for hire on its land. In contrast the argument advanced before us was that the landowner's consent to the fixing of the stand was sufficient to amount to consent to access the land.
24. Mr Fletcher also placed weight on byelaw 3, which requires taxi drivers to proceed with reasonable speed to one of the appointed stands. That, he submitted, necessarily implied that access to the stand would not be prevented. He also submitted that allowing the landowner to restrict access by charging a fee meant that the licensing authority lost control over the supply of taxis at the station and in particular the ability to ensure an adequate number of taxis available to customers arriving at the station.
25. The heart of Mr Small's response on behalf of the respondent was that the scope of the statutory consent had to be gleaned from the relevant legislation. Thus the giving of consent necessarily carried with it the consequence that a taxi stand would be fixed on the land. It followed also that the authority would have the power to vary the number of taxis permitted to be at the stand, subject to the consultation requirement. He also drew our attention to section 64(1) of the 1976 Act which imposed a restriction on allowing vehicles other than taxis to wait at an appointed taxi stand. Beyond those very limited matters, Parliament must be taken to have allowed the landowner to retain all his rights, including in particular the right to restrict access by charging a fee.
26. Mr Small also drew our attention to some of the potential consequences if the landowner is not permitted to restrict access to a stand to which it had given consent. He pointed to the fact that, depending on the precision with which the taxi stand was located in the relevant byelaw, it might be impossible to effect a temporary change in the position of the stand on the land in order to carry out works or repair or refurbishment. Further, if the landowner decided to provide additional services to taxi drivers, such as a taxi monitor or controller, it would have no means of raising money from the drivers. It would also not have power to exclude licensed taxi drivers on the ground of apprehended bad conduct. He submitted that considerations such as these would act as a powerful deterrent to the grant of consent to the appointment of a stand on private land.

Discussion and disposal

27. It is beyond dispute that Parliament has, in the successive Acts, consistently left to the private landowner the power to withhold consent to the fixing of a taxi stand on its private land. The issue at the heart of this appeal is what consequences follow for the landowner when he does give consent and the stand is fixed. In particular, is it necessary or legitimate to imply into the statute a consent on behalf of the landowner, so long as the stand is so fixed, to permit unrestricted access to the stand by licensed taxis?
28. Section 76 of 1925 Act extended the provisions of the 1847 Act with respect to regulation of taxis to taxis standing or plying for hire at railway stations. Given that section 68 of the 1847 Act included an express power to make byelaws fixing taxi stands, section 76 would, without more, have enabled a licensing authority to fix a stand on a railway station. Proviso (b) makes it clear that the authority may only do so with the consent of the landowner. The same is true of section 63(1) of the 1976 Act.
29. Thus far, Parliament is consistently recognising and respecting the rights of the private landowner to prohibit any inroad into his rights as owner to control the use of his land. There is no express indication, either in section 76(b) of the 1925 Act or section 63(1) of the 1976 Act or their surrounding sections, that Parliament intended to create a mandatory requirement for consent on the part of the landowner to permit unrestricted access to the stands to licensed taxis. If such a requirement was created, it must arise as a matter of implication.
30. It is of course true to say that a taxi stand cannot operate without taxis. This is perhaps the strongest point in favour of the suggestion that the landowner's consent to the appointing of the stand implies some form of consent on the part of the landowner to permit taxis to reach and leave the stand. I am not however able to find, in either this point or in Mr Fletcher's supporting arguments, a basis for interpreting proviso (b) to section 76 of the 1925 Act or section 63(1) of the 1976 Act as implying a consent as wide as that for which he had to contend.
31. Thus I was not persuaded that Byelaw 3 of the taxi byelaws was of any assistance. Quite apart from the point that the byelaws cannot legitimately be used as an aid to construction of primary legislation, the byelaws do not impose an obligation to proceed to the nearest stand. If the byelaw had meant to create such an obligation, it would have said so. Instead the byelaw requires the taxi to proceed "with reasonable speed to one of the stands". Even if the byelaw bore the meaning contended for, it carries no implication that a space will be available for the taxi when it arrives at any given stand. If that is so, it is difficult to see how a driver could be in breach of this byelaw if access were prevented to a stand (e.g. one on private land) by other means.
32. Equally, it does not seem to me that assistance can be gained from the suggestion that the licensing authority would not be able properly to ensure an adequate supply of taxis at transport hubs such as stations. If it were clear that the purpose of the legislation included the objective of ensuring an adequate supply of taxis at railway stations and the like, there might be some force in this point. Such material as we were shown, however, does not support the existence of an express purpose to that, or like, effect. It is true that the underlying purpose of a taxi stand is to provide a point at which there is an increased chance that the prospective passenger may find a taxi. But it is no more than that.
33. Section 63(1) of the 1976 Act allows the authority to vary the number of taxis permitted to be at each stand. This is expressed in language which would permit the authority to increase the permitted number. This subsection and the immediately following one requiring consultation with the police and the public do not seem to me necessarily to imply that a landowner cannot restrict access to permitted spaces on a stand appointed on his land.
34. In my judgment the reasons advanced against the implication of an unrestricted consent to access are far more compelling. Firstly, the landowner would lose, if the appellants are right, important aspects of its ability to control the use of its land. This is not a conclusion to which the court will readily come unless there are good reasons to do so.
35. Secondly, it is not difficult to find in the statutory scheme a purpose for the requirement of the owner's consent. The requirement is, as Mr Small submits, not only necessary in order to avoid the imposition on the landowner of a taxi stand at all, but also to give the landowner control over the precise placing of the stand, and other aspects of its operation. The landowner, by withholding his consent, can impose conditions on its consent which the authority can either accept or lose the opportunity of placing the stand on that land at all. One clear purpose of the requirement, in my judgment, is therefore to ensure the preservation of the owner's rights of control of its land so far as consistent with the appointment of the stand.
36. Thirdly, and following on from the second reason, I see no reason why the landowner should not give its consent on the express basis that it reserves the right to charge (or, as might have been the case with British Rail in 1974, continue to charge) a fee for entry. If it is open, as I believe it is, to the landowner to protect itself in this way, then it is difficult to see why the requirement for consent to the fixing of a stand should necessarily imply unrestricted access to the stand.
37. Fourthly I reject Mr Fletcher's attempted dichotomy between public and private stands. Once it is appreciated that the ability to withhold consent allows the landowner to control the terms on which the stand is fixed on his land, there is nothing inherently contradictory in a stand which is on private land where entry is subject to a charge.
38. Fifthly, it is not at all clear to me how, on the appellants' case, the landowner regains control of its land once it has given its consent. The appellants' case involves the proposition that consent to the appointment of a taxi stand on private land implies a necessary consent on the part of a landowner to allow unrestricted access to the stand until the stand ceases to be designated by byelaw. As Mr Fletcher recognises, causing the stand to cease to be an appointed stand is something over which the landowner has no direct control. He described it as a political process. The amendment to the byelaw would require the consent of the local authority and approval of the Minister. The effect would be that the land would, on the appellants' argument, be burdened with an obligation which it would be impossible for the landowner to remove at will, and which would reduce the value of the land in the event of a change of use, insolvency of the owner or proposed sale. That consideration, it seems to me, makes it all the more unlikely that it was Parliament's intention to create this right.
39. Finally, it is of course possible to postulate extreme examples where, if the respondent is right and it retains a right to restrict access, the purpose of the appointment of a stand would be defeated. One example might be imposing such an exorbitant fee for the permit that no taxi driver would be prepared to pay. Another might be barring all access for no reason. However, these examples are more theoretical than real. In reality the landowner who has consented to the appointment of a stand on its land is not likely to wish to prevent taxis from using it altogether, at least for as long as he wants a stand on his land at all. I consider it much more likely that Parliament intended to leave landowners with the ability to control access, than to burden the landowner with an obligation to grant an unrestricted right of access which it might prove difficult or impossible to remove.
40. I accept Mr Small's submission that the landowner's consent to the appointment of the stand carries with it no more than that which the statutory context requires, namely that there is a taxi stand on the land subject to the regulation of the authority. This does not go far enough for the appellants' purposes. There is no reason why the landowner should not restrict access or charge a fee. It follows that I consider that the judge reached the right conclusion on this issue.
41. I would add that I have been able to reach this conclusion without the reliance which the judge understandably placed on Hulin v Cook. It is not completely clear that the appellant's argument in this case, based on the alleged consequences of consent to the appointment of the stand, was raised in Hulin v Cook. In the event, the conclusion I have reached is consistent with the conclusion reached by the Divisional Court in that case.
42. In the light of my conclusions it is not necessary for me to express any view on the alternative way in which the respondent put its case successfully before the judge, based on the railway byelaws.
43. For the reasons I have given, I would dismiss the appeal.

Lord Justice Underhill

44. I agree. The essential question is whether if a landowner gives the consent provided for in section 63 (1) of the 1976 Act to the appointment of a stand on its land the statute means that that constitutes consent to taxis being given unrestricted access to that stand (subject to the regulatory powers of the authority). The section does not so provide expressly, and I do not believe that such a meaning should be implied. In my view the provision for the landowner's consent is explicable on a basis which does not involve the landowner giving up what would otherwise be its right to control access to its own land. As Floyd LJ points out, the requirement of consent creates a mechanism by which authorities have to co-operate with private landowners not only about whether there should be stands on their land at all (which is unlikely to be an issue in the case of a railway company) but also about the number and precise location of such stands and other ancillary matters within the authority's powers. Such co-operation is desirable even if the landowner retains the right itself to restrict, or to impose conditions on, access. That in my judgment sufficiently explains why Parliament included the requirement of consent, and accordingly it would be wrong to imply that by giving that consent the landowner must be taken to have given up its property rights.

Lady Justice Arden

45. I agree with both judgments.