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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bus And Coach Association Ltd, R (On the Application Of) v Secretary of State for Transpor  EWHC 3319 (Admin) (06 December 2019)
Cite as:  EWHC 3319 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE LEWIS
| THE QUEEN (on the application of) BUS AND COACH ASSOCIATION LIMITED
|- and -
|SECRETARY OF STATE FOR TRANSPORT
- and -
(1) COMMUNITY TRANSPORT ASSOCIATION
(2) MOBILITY MATTERS CAMPAIGN LIMITED
Richard Drabble QC (instructed by Russell-Cooke LLP) for the Interested Parties
Hearing date: 19 November 2019
Crown Copyright ©
Lord Justice Leggatt (giving the judgment of the court):
(1) outline the relevant legal framework;
(2) summarise the background to the proceedings;
(3) identify the principles to be applied in deciding whether it is appropriate for the court to make an order declaring what the law is in a case of this kind;
(4) consider whether or in what respect there is any real dispute about the law between the parties to these proceedings; and
(5) explain our reasons for concluding that it is not appropriate to make a declaratory order in this case, as there is no such dispute, and that it is the responsibility of the Secretary of State to enforce the law as it stands.
(1) The legal framework
The 1981 Act
The 1985 Act
(1) A permit granted under section 19 to a body concerned with education, religion, social welfare, recreation or other activities of benefit to the community. Such a permit does not cover the use of a public service vehicle for the carriage of members of the general public or with a view to profit or incidentally to an activity which is itself carried on with a view to profit.
(2) A "community bus permit" granted under section 22 to a body concerned for the social and welfare needs of one or more communities to provide a "community bus service". This is defined in subsection (1) as a "local service" provided by such a body without a view to profit, either on the part of that body or of anyone else. For this purpose, a "local service" means a service using public service vehicles for the carriage of passengers by road at separate fares on which passengers may travel for less than 15 miles (see section 2 of the Act).
The EU Regulation
"(b) undertakings engaged in road passenger transport services exclusively for non-commercial purposes or which have a main occupation other than that of road passenger transport operator;"
(2) Background to the proceedings
Amendments to the 1985 Act
Community transport organisations
The claimant's campaign
Involvement of the Commission
The Erewash case
"a lack of certainty as to the precise test, or tests, to be applied for determining whether or not an organisation, such as a charity or other 'non-profit' entity, which is providing transport services for the benefit of people in the locality that it serves is, or is not, engaging in that activity 'exclusively for non-commercial purposes'."
Outcome of the consultation
The claimant's case
(3) Declaratory judgments
"It has always been a fundamental feature of our judicial system that courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved."
(5) Meaning of the non-commercial purposes exception
General scope of the EU Regulation
Approach to interpretation
"In the interests of fair competition, the common rules governing the exercise of the occupation of road transport operator should apply as widely as possible to all undertakings. However, it is unnecessary to include within the scope of this Regulation undertakings which only perform transport operations with a very small impact on the transport market."
The Lundberg case
"With regard, firstly, to the usual meaning of the concept of 'non-commercial carriage of goods', it must be noted that such a carriage occurs where there is no link with a professional or commercial activity, that is to say, where the carriage of goods is not performed with a view to earning income therefrom. As it is usually understood, the non-commercial carriage of goods therefore designates, in particular, the carriage of goods by a private individual as part of a recreational activity outside his professional activity."
(1) the level of the payments received by the organisation for providing its road passenger transport services;
(2) whether or to what extent the organisation is providing services under contracts won in competitive procurement or tender exercises;
(3) the size and scale of its operations in the market for road passenger transport services; and
(4) the extent to which the organisation relies upon the support of unpaid volunteers to deliver its road passenger transport services or, in so far as it relies on paid staff, whether they are paid at levels comparable to the staff paid by commercial operators to perform similar roles.
UPON an application for judicial review, permission for which was granted by Sir Duncan Ouseley on 28 January 2019
AND UPON hearing Counsel for the Claimant (James Segan), Counsel for the Secretary of State for Transport (Alan Bates) and Leading Counsel for the Interested Parties (Richard Drabble QC) at an oral hearing on 19 November 2019
AND UPON the Court concluding by a Judgment delivered on the date of this Order that it is not appropriate to make a declaratory order in this case for the reasons set out in the Judgment
IT IS ORDERED: