Hempenstall v Minister for the Environment

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 01 January 1994
• Neutral Citation: 1993 WJSC-HC 645
• Court: High Court
• Docket Number: No. 214 J.R./1992,[1992 No. 214 J.R.]
• Date: 01 January 1994

HEMPENSTALL v. MIN ENVIRONMENT

BETWEEN:

THOMAS HEMPENSTALL AND OTHERS

Applicant

and

THE MINISTER FOR THE ENVIRONMENT

Respondent

1993 WJSC-HC 645

No. 214 J.R./1992

THE HIGH COURT

Synopsis:

EVIDENCE

Estoppel

Minister of State - Order - Statute - Power - Exercise - Prior interview with persons concerned - Representations by Minister - Estoppel inapplicable to exercise of statutory discretion - (1992/214 JR - Costello J. - 27/10/92) - [1994] 2 I.R. 20

|Hempenstall v. Minister for the Environment|

LICENCE

Taxis

Hackney vehicles - Competition - Licences - Issue - Cessation - Re-issue - Taxi owners complaint on recommencement of issue of hackney licences - Attack on property rights - Ministerial representations - Estoppel - Road Traffic (Public Service Vehicles) (Amendment) Regulations, 1991 (S.I. 272/91), article 12 - Road Traffic (Public Service Vehicles) (Amendment) (No.2) Regulations, 1992 (S.I. 172/92) - Constitution of Ireland, 1937, Articles 40, 43 - (1992/214 JR - Costello J. - 27/10/92) - [1994] 2 I.R. 20

|Hempenstall v. Minister for the Environment|

MINISTER OF STATE

Order

Validity - Challenge - Hackney vehicles - Licences - Issue - Banning order - Revocation of order - Complaints of taxi licensees - Interview with Minister - Minister's representations - Estoppel inapplicable to exercise of statutory discretion - (1992/214 JR - Costello J. - 27/10/92) - [1994] 2 I.R. 20

|Hempenstall v. Minister for the Environment|

Citations:

ROAD TRAFFIC ACT 1961 S3

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES)(LICENSING) REGS 1978 SI 292/1978

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES)(AMDT) REGS 1991 SI 272/1991 ART 12

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES)(AMDT)(NO 2) REGS 1992 SI 172/1992

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES)(AMDT) REGS 1983 SI 273/1983

CONSTITUTION ART 40.3

CONSTITUTION ART 43

WEBB V IRELAND 1988 IR 353

AG HONG KONG V NG YUEN SHIU 1983 2 AC 629

FAHIK & ORS V MIN FOR JUSTICE UNREP O'HANLON 05.03.92 1992/7/1998

DUBLIN CORPORATION V MCGRATH 1978 ILRM 208

WESTERN FISH PRODUCTS V PENWITH DC 1981 2 AER 204

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) REGS 1963 SI 191/1963

1 Judgment of Mr. Justice Costello Delivered on the 27th day of October 1992

INTRODUCTION

2 This is an application brought by six licensed taxi owners challenging part of a Regulation made under the Road Traffic Act by the Minister for the Environment on the 1st July 1992. In October 1991 the Minister had by Regulation prohibited the issue of new licences under the Road Traffic Acts to hackney owners. The impugned article of the 1992 Regulations repeals that prohibition. The challenge is brought on two separate grounds:

3 (a) That the repealing provision infringes the applicants constitutionally protected property rights, and

4 (b) that, being contrary to a verbal assurance given by the Minister to one of the applicants and repeated by him to others, the Minister is, by making the Regulation, acting contrary to the legitimate expectations of the applicants and is thereby estopped from making it.

5 It will help an understanding of the issues in the case if before examining the applicants case I refer briefly to the relevant statutory Regulations.

THE REGULATIONS

6 Section 3 of the Road Traffic Act 1961defines a "large public service vehicle" as a public service vehicle having seating passenger accommodation for more than 8 persons exclusive of the driver and defines a "small public service vehicle" as a public service vehicle which is not a large public service vehicle. In 1963 (by S.I. No. 191 of 1963) small public service vehicles were divided into two classes, "licensed public hire vehicles", known colloquially as taxis and "licensed private hire vehicles" known as hackney. Under these Regulations and amending Regulations two different legal regimes were created for taxis and hackneys. Taxis may ply for hire in a public place or stand at an appointed taxi rank; their hiring may be initiated or facilitated by means of telephone or radio conte whilst the vehicle is in a public place; they are subject to fare controls and fares must be calculated by reference to a taxi meter; they must display a roof sign which show the words "taxi, and the licence number". Hackney cabs are not assigned specific functions in the Regulations. They are, however, prohibited from exercising certain roles. Private hire operators are not subject to any geographical restriction and are not subject to fare control or obliged to use meters. Both class of vehicle had to be licensed but under the 1963 Regulations no restrictions were placed on the number of either hackney or taxi licences which could be granted in any area.

7 In 1978 an important amendment was made in the Regulations. By the Road Traffic (Public Service Vehicles) (Licensing) Regulations 1978 (S.I. No. 292 of 1978) taxi licences could only be granted in "a taximeter area" (as defined) where the local authority for that area made a determination that a specific number of such licences were to be made available on an annual basis. But these Regulations did not impose any restrictions on the availability of hackney licences. Most importantly, the Regulations permitted the transfer of taxi licences, and following the Regulations a thriving market in the sale of licences developed.

8 On the 16th May 1991 the Minister announced the establishment of an inter-departmental committee to carry out an examination of the law governing the operation of small public service vehicles. In October 1991 the Committee submitted some interim recommendations, one of which was that a temporary moratorium on the issue of new hackney licences should be imposed to maintain the status quo pending the completion of the Committee's review. Pursuant to this recommendation, the Minister on the 24th October 1991 made the Road Traffic ( Public Service Vehicles) (Amendment) Regulation 1991 (S.I. No. 272 of 1991). Article 12 of these Regulations prohibited the granting of new small public service vehicle licences other than in respect of pending applications. It is the repeal of Article 12 by the impugned 1992 Regulation that forms the gravamen of the applicants complaint in these proceedings. For thirty years no restriction had been placed on the numbers of hackney licences to be issued. The 1991 Regulations imposed a temporary restriction. The applicants claim is that the Minister cannot validly lift that restriction.

9 The Committee's final report was presented to the Minister on the 6th May 1992. One of the recommendations in the report was to the effect "that the temporary moratorium which was introduced in October 1991 on the issue of new licences, so as to stabilise the market pending the completion of the review, should now be removed to again allow unrestricted entry to this sector of the market". On the 1st July 1992 the Minister published the report and also made the Road Traffic (Public Service Vehicles) (Amendment) (No. 2) Regulations, 1992 ( S.I. No. 172 of 1992). This repealed Article 12 of the 1991 Regulations and removed the moratorium on the granting of new hackney licences.

10 There is one other Regulation to which reference must be made as it constitutes a critical part of the applicant's case. I have pointed out that taxis may obtain fares by means of telephone or radio communications and it is agreed that for many licence holders this method of obtaining customers is an important source of their livelihood. In 1983 a significant restriction was placed on hackney hirings by the Road Traffic (Public Service Vehicles) (Amendment) Regulations, 1983 (S.I. No. 273 of 1983). These provided that hackney (as distinct from taxi) hirings within a taximeter area, other than in connection with the funeral of a deceased person, could not be initiated or facilitated by means of telephone or radio communications with the vehicle while it is in a public place. The applicants urge that (a) this Regulation is unenforceable or, alternatively (b) that it has not been adequately enforced and that as a result (c) hackney cabs can, and in practise do, operate in taximeter areas in breach of the law by accepting hirings by radio in public places. As a result, it is said, hackney owners are able to compete unfairly against taxi owners in those areas as they are not subject to any of the restrictions imposed by law on taxi owners.

THE ISSUES

(a) The Constitution

11 The applicants firstly submit that the taxi licences which have been granted to them are a form of property right and that this property right is constitutionally protected; secondly, that it is valuable right; thirdly, that these rights have been unjustly attacked by the Minister's actions which have resulted in a very considerable diminution in the value of their rights. The Minister does not deny that the applicants licences are property rights and valuable rights, which are constitutionally protected; he says that they have not been unjustly attacked by the impugned Regulation.

12 The applicants case, in greater detail, is this. They say that the effect of the impugned Regulation is that there will now be unrestricted licensing of hackney cabs in their taximeter area. They claim that this will have "an immediate and devastating effect" on their taxicab licences, that the effect will be "effectively to decimate the value of a taxicab licenser because for all intense and purposes the manner in which hackney cabs have been allowed to operate by the authorities has put them on a par with taxicabs save that they do not stand at taxi ranks". They say that the value current in July 1992 of a taxi licence was approximately £44,000 and that on implementation of the Regulation the effect of unrestricted competition from hackney cabs would be to reduce this value to £3,000. Their claim is that the competition from hackney cabs would dilute the trade which support...