Humphrey v Minister for the Environment

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 13 October 2000
• Neutral Citation: [2000] IEHC 149
• Court: High Court
• Docket Number: [2000 No. 38 J.R.]
• Date: 13 October 2000

[2000] IEHC 149

THE HIGH COURT

Record No. 38 JR/2000

HUMPHREY & ORS v. MINISTER FOR THE ENVIRONMENT & ORS

JUDICIAL REVIEW

BETWEEN

CHRISTOPHER HUMPHREY, TONY DOYLE, THOMAS O'CONNOR AND KEVIN BRADY

APPLICANTS

AND

THE MINISTER FOR THE ENVIRONMENT AND LOCAL GOVERNMENT, THE MINISTER OF STATE AT THE DEPARTMENT OF ENVIRONMENT AND LOCAL GOVERNMENT, IRELAND, THE ATTORNEY GENERAL, DUNDALK URBAN DISTRICT COUNCIL, THE RIGHT HONOURABLE, LORD MAYOR ALDERMEN AND BURGESSES OF THE CITY OF DUBLIN THE NATIONAL TAXI DRIVERS UNION AND THOMAS GORMAN (IN HIS REPRESENTATIVE CAPACITY AS GENERAL SECRETARY OF THE UNION) (JOINED BY ORDER)

RESPONDENTS

Citations:

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) REGS 2000 SI 3/2000

ROAD TRAFFIC ACT 1961 S5

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) (AMDT) REGS 1995 SI 136/1995 SCHED 6

ROAD TRAFFIC ACT 1961 S82

ROAD TRAFFIC ACT 1968 S57

ROAD TRAFFIC ACT 1961 S5(2)

CONSTITUTION ART 40.1

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) (AMDT) REGS 1995 SI 136/1995 ART 7(1)

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) (AMDT) REGS 1995 SI 136/1995 ART 32(1)

RSC O.84

RSC O.84 r21

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

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) (LICENSING) REGS 1978 SI 292/1978 ART 5

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) (AMDT) REGS 1995 SI 136/1995 ART 7

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) (AMDT) REGS 1995 SI 136/1995 ART 11(2)

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) (AMDT) REGS 1997 SI 193/1997

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) (AMDT) REGS 1999 SI 51/1999

CONSTITUTION ART 15.2

LAURENTIU V MIN FOR JUSTICE 2000 1 ILRM 1

PIGS MARKETING BOARD V DONNELLY (DUBLIN) LTD 1939 IR 413

CITYVIEW PRESS LTD V CHOMHAIRLE OILIUNA 1980 IR 381

MCDAID V SHEEHY 1991 1 IR 1

O'NEILL V MIN FOR AGRICULTURE 1998 1 IR 539

CONSTITUTION ART 15

ROAD TRAFFIC ACT 1933 PART VII

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) (LICENSING) REGS 1978 SI 292/1978 ART 5(1)

HEMPENSTAL V MIN FOR ENVIRONMENT 1994 2 IR 20

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD V AG 1970 IR 317

ROAD TRAFFIC ACT 1961 S82(2)

AG V WILTS UNITED DAIRIES LTD 1921 37 TLR 884

GOSLING V VELEY 1850 12 QB 328

DE SMITH WOOLF & JOWELL JUDICIAL REVIEW 4ED 222

MIXNAMS PROPERTY LTD V CHURTSEY URBAN DISTRICT COUNCIL 1964 1 QB 214

CASSIDY V MIN FOR INDUSTRY 1978 IR 297

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

R V MANCHESTER CITY JUSTICES EX PARTE MCHUGH 1989 RTR 285

O'DWYER V MIN FOR ENVIRONMENT UNREP GEOGHEGAN 27.3.1998 1998/28/11376

CENTRAL DUBLIN DEVELOPMENT ASSOCIATION V AG 1975 ILTR 69

SHANLEY V GALWAY CORPORATION 1995 1 IR 396

HAND V DUBLIN CORPORATION 1991 1 IR 409

LYNCH, STATE V COONEY 1982 IR 337

DE SMITH WOOLF & JOWELL JUDICIAL REVIEW 5ED 506

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD V MIN FOR TRANSPORT 1997 1 ILRM 241

ROAD TRAFFIC ACT 1961 S82(3)

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S2

DEVLIN V MIN FOR ARTS CULTURE & GAELTACHT 1999 1 ILRM 462

ROAD TRAFFIC ACT 1961 S82(1)

BUTTERWORTHS WORDS & PHRASES LEGALLY DEFINED 3ED "LICENSING"

BANK OF NEW SOUTH WALES V COMMONWEALTH 1948 76 CLR 1

R V PORT OF LONDON AUTHORITY EX PARTE KYNOCH 1919 1 KB 176

R V LIVERPOOL CORPORATION EX PARTE TAXI FLEET 1972 QB 22

TREATY OF ROME ART 13

TREATY OF ROME ART 12

TREATY OF ROME ART 39

O'FLYNN V ADJUDICATION OFICIER 1996 ECR 2617

COLLINS V HANDELSGESELLSCHAFT 1993 ECR 5145, 1993 3 CMLR 773

KOLN-ALTSTADT V SCHUMACKER 1995 ECR 225

BLOOMER V LAW SOCIETY 1995 3 IR 14

TREATY OF ROME ART 86

WYATT & DASHWOOD EUROPEAN COMMUNITY LAW 3ED 551

TREATY OF ROME ART 82

HOFNER & ELSER V MACROTRON 1991 ECR 1979 1993 4 CMLR 306

TILEORASSI V PLIROFORISSIS & KOUVELAS 1991 ECR 2925, 1994 4 CMLR 540

MERCI CONVENZIONALI PORTO DI GENOVA V GABRIELLI 1991 ECR 5889, 1994 4 CMLR 422

CRAIG & DE BURCA EU LAW 2ED

Synopsis:

Road Traffic

Administrative law; European Community law; road traffic; licensing of small vehicles for hire; first and second-named respondents had proposed by Statutory Instrument 3/2000 to increase number of taxi licences in Dublin and Dundalk by granting an extra licence to each existing licence holder; first-named respondent had conferred power on fifth-named respondent (Dundalk UDC) to vary fees and to vary taximeter boundaries within its functional area; fifth-named respondent had purported to vary fees in relation to taximeter area of that Council; applicants seek a declaration that proposed Statutory Instrument is ultra vires the first and second-named respondents, a declaration that conferral of power on fifth-named respondent to vary fees and taximeter boundaries was ultra vires the first-named respondent and a declaration that decision of fifth-named respondent to vary fees and taximeter boundaries was ultra vires that body; orders of certiorari and injunctive relief also sought; whether delay had precluded challenges to statutory instruments predating S.I. 3/2000; whether "control and operation", as appears in parent Road Traffic legislation extended to numerical or quantitative control; Road Traffic (Public Service Vehicles) Regulations, 2000; ss. 5 and 82, Road Traffic Act, 1961, as amended by s. 57, Road Traffic Act, 1968.

Held: Reliefs granted; delay precluded challenges to pre-S.I. 3/2000 instruments; "control and operation" extends to numerical or quantitative control, but Minister could not fetter his discretion in the exercise of that control; Minister could not exclude persons from working in an industry for which they may be perfectly well qualified; per curiam, proposed scheme infringed Articles 12 and 86 EC.

Humphrey v. Minister for the Environment - High Court: Murphy J. - 13/10/2000 - [2001] 1 IR 263 - [2001] 1 ILRM 241

The applicants issued judicial review proceedings seeking to challenge certain provisions of the Road Traffic (Public Service Vehicles) Regulations, 2000 which provided for the issuing of new taxi licences. The applicants challenged inter alia the proposal to issue a new additional taxi licences to existing licence holders. The applicants argued that the relevant provisions of the Road Traffic Act, 1961 did not permit the scheme proposed by the respondents. Murphy J was satisfied that while the Minister had the right to regulate the control and operation of taxis the restrictions proposed by the Minister were quantitative in nature and were not permitted under the Road Traffic Act, 1961. In addition by granting the new licences to Irish nationals the licensing scheme could be said to offend against the principle of non-discrimination contained in European law and indeed could be said to infringe aspects of European competition law. The orders sought by the applicants would be granted.

1 Mr. Justice Roderick Murphy delivered the 13th day of October, 2000 .

1. BACKGROUND

2 Demand for passenger transport services, particularly in the Dublin area, has far exceeded supply at peaks causing queuing, frustration and a chronic under supply but also extends to non-peak times. At peak times the excess demand is notorious.

3 Public transport consists of large and small public service vehicles. The application in this case concerns the licensing of small vehicle hire service. However, the application needs to be considered in the context of transport available generally for the public.

4 There has been a traditional distinction between large vehicle public transport such as trains and buses and, within that category between urban, suburban and interprovincial services. Such public transport has been the subject of consolidation and state monopoly in the 1940s and to a degree of fragmentation and liberalisation in the recent past.

5 The imperative of public supply in relation to the State monopoly imposed an obligation to supply irrespective of adequate economic return and to cross subsidise non-economic routes as a public service.

6 In relation to small hire vehicles the State and Local Authorities were required by legislation to provide for the regulation of standards by way of licensing of what has always been essentially a private hire market. A key distinction in that market is made between the public hire vehicles (taxis) and private hire vehicles (hackneys). Public and private hire vehicles are, of course, privately supplied to the public. However, there is no obligation on licensee to provide a determined, or indeed, any public service.

7 Taxis are restricted with regard to the fees to be charged for such a service, while hacknies, the private hire vehicles, are not. However, there would seem to be no significant difference in charges in practice.

8 Taxis can ply for trade in public, may stand at designated ranks and use bus lanes while hacknies can not.

9 A licensed vehicle, whether taxi or hackney, must be driven by a licensed driver, that is the holder of a public service vehicle license, irrespective of whether that driver is or is not the owner of the licensed vehicle. Where the driver is not the owner of the vehicle she or he is termed a "cosy".

10 The Applicants in the present case are all holders of both public service vehicle driving licenses and hackney licenses granted in respect of small hire vehicles by the local authorities, the fifth and sixth named Respondents. Each has applied for a taxi license and has been refused. The Applicants are unhappy with the action of the Minister and the Minister for State in relation to the proposal to increase the supply of taxis in Dublin and Dundalk as is contained in Statutory Instrument Number 3 of 2000 of February last, entitled Road Traffic (Public Service Vehicles) Regulations

11 In an attempt to address the increasing demand for hire vehicles the Authorities propose granting an extra license to each existing taxi license holder. The Authorities also propose granting wheelchair accessible taxis to suitable Applicants, giving priority to the holders of public service vehicles...