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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Falconer & Ors v South Ayrshire Council (No 2) [2001] ScotCS 156 (19 June 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/156.html Cite as: [2001] ScotCS 156

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[1] The respondents are for the purposes of the statutory regulation of taxis the licensing authority for their area, having succeeded to that function on reorganisation of local government in 1996. Their predecessors, Kyle and Carrick District Council, had a number of licensing policies and procedures which were adopted by the respondents on their assuming the statutory function. These included a policy of restricting the number of taxi vehicle licences to a maximum, with any person interested in obtaining a licence being placed on a waiting list; when an existing licence was surrendered, the person at the top of that list was invited to apply for a licence. Applications other than on such invitation were not submitted. As at September 2000 twenty seven such licences were in existence. The waiting list comprised seventy six names.

[2] In or about August 2000 the respondents received uninvited applications for licences from two persons. A further three such applications were also anticipated. In these circumstances the respondents' Director of Community Protection prepared and submitted to the Community Protection and Support Services (Licensing) Sub-Committee a report in which he reviewed the situation (including drawing the members' attention to Coyle v City of Glasgow Council 1998 S.L.T. 453) and made certain recommendations. The report, which was dated 18 August, was considered by the Sub-Committee on 7 September when it determined -

[3] Invitations were duly issued and advertisement duly made. Thirty five applications were received. On 20 October public notice was given of the names of the applicants; objections and representations in relation to these were invited by 7 November. On 25 October a solicitor acting for the petitioners, who are all current holders of taxi vehicle licences in the respondents' area, wrote to the respondents intimating that he had received instructions and seeking an opportunity to make representations on behalf of the petitioners. He attached a "general summary of interim observations" in relation to the applications. That summary included a number of specific points. It also made the general statement -

Although not specifically referring to it, the writer may have had in mind that in 1993 the respondents' predecessors had commissioned a report by TecnEcon (Economic and Transport Consultants) entitled "Survey of Demand for Taxi Services and Related Issues".

[4] The Sub-Committee duly convened on 14 December. It had before it a report of the same date from the Director and a report dated November 2000 from Colin Buchanan and Partners (consultants on transport and other matters) entitled "Ayr Taxi Review". That report had been commissioned by the respondents in October 2000 "to carry out a survey of taxi use in Ayr to measure the demand for taxis in the town and to determine if the demand is currently being met by the existing stock of licensed cabs". The Sub-Committee also heard representations orally from at least some of the applicants and from the petitioners' solicitor. Certain representations in writing were also before them. The unanimous determination of the Sub-Committee (as recorded on the second page of the relative Minute) was in the following terms:

[5] The petitioners' solicitor thereafter sought a statement in writing under paragraph 17 of Schedule 1 to the Civic Government (Scotland) Act 1982 of the respondents' reasons for arriving at their decision to grant the thirty five applications for taxi vehicle licences. By letter dated 22 December a statement of reasons was given. No appeal was taken by the present petitioners to the sheriff under paragraph 18 of Schedule 1 against the respondents' decision to grant those applications.

[6] In this petition for judicial review the petitioners seek certain remedies from this court. These include (following amendment of the petition) reduction of "paragraphs (i) and (ii) inclusive on the second page of the Minutes of the committee's meeting on 14 December 2000 (production 7/3) as being unlawful". They also seek interdict of the respondents from issuing the thirty five licences. Interim interdict in these terms was pronounced earlier in these proceedings after a hearing at which both parties were represented.

[7] The bases on which on averment the petitioners seek those remedies may be summarised as follows:

[8] In the course of adjustment of the petition an additional basis for challenge was advanced in the following terms:

[9] Section 10(3) (as amended) of the 1982 Act provides:

Paragraph 5 of Schedule 1 to the Act provides:

Sub-paragraphs (a) to (c) of paragraph 5(3) specify particular circumstances in which an application must be refused.

[10] At the first hearing of the petition Sir Crispin Agnew for the respondents advanced certain preliminary pleas (including a plea to the competency) on the basis of which he maintained that the petition should be dismissed without the need for consideration of its merits. In the event, for various reasons, expressed in my Opinion dated 7 March 2001, I took the view that these pleas should not be disposed of until I had heard argument on the merits. I have now heard such argument, as well as argument on a further plea introduced by the respondents based on mora, taciturnity and acquiescence. While it is generally appropriate to consider and dispose of a plea to the competency before considering the merits of an application, there was, in my view, an advantage in this case in first giving some consideration to the merits of the petitioners' complaints, not least because a more precise identification of these assisted in addressing the issue of competency which arose.

[11] Mr Dewar for the petitioners submitted that, whatever exactly section 10(3) meant, it appeared to be concerned with whether there was a significant unmet demand for the relative services in the area. The licensing authority required to have regard to supply and demand and, if it so chose, might, in the interests of maintaining an equilibrium between them, put a limit on the number of licences. In that context it was appropriate and necessary that it had regard to the interests of the public and to those of existing licence holders. Those factors were relevant also to paragraph 5(3)(d) of Schedule 1. The burden of the petitioners' complaint was that the Sub-Committee ought not to have determined the applications without first having before it a comprehensive report of the kind prepared in 1993 by TecnEcon which would allow a like for like comparison to have been made with the present situation. Colin Buchanan and Partners' report (which was unduly narrow both in respect of the geographical area and of the times surveyed) did not allow of such a comparison. From the outset the respondents (and their officials) had adopted a blinkered attitude. The Director's report of 18 August 2000 while referring to section 10(3) had made no reference to paragraph 5 of Schedule 1. On the other hand, while that report had drawn attention to the need to consider the views of existing taxi operators, the respondents (in their decision and in their Answers to the present petition) had disregarded these. The decision of 14 December involved two elements (1) (expressly) the granting of the thirty five applications and (2) (implicitly) a departure from the pre-existing policy of limiting the number to twenty seven. The result had been to more than double the number of licences. The statement of reasons given had made no reference to the part of the decision reflected in paragraph (ii)(D) of the Minute. The Sub-Committee had even failed to take into account matters to which the Colin Buchanan and Partners' report had drawn attention. If the Sub-Committee had not been prepared to defer a decision on the applications until a more comprehensive report was available, it might, under paragraph 5(3)(d) of Schedule 1 have refused the applications. It was immaterial that that course of action had not been brought to its attention by the petitioners' solicitor. The Sub-Committee appeared to have granted all thirty five applications without considering their individual merits or the significant impact of the grant of all of them. While it might be going too far to describe the Sub-Committee as having, by its prior acts, fettered the discretion available to it on 14 December, it had by adopting those earlier measures set itself in the wrong direction. In addressing the question whether the pre-condition (relative to unmet demand) specified in section 10(3) was met, the Sub-Committee ought to have given proper consideration to the material before it, not (as appeared from the statement of reasons) to have asked itself whether others before it had provided evidence of no significant unmet demand. As regards legitimate expectation, reference was made to the classification made by Simon Brown L.J. in R. v Devon County Council, ex parte Baker [1995] 1 All ER 73 at pps.88-9. The second class was in point here. The decision of the Sub-Committee was unreasonable in the Wednesbury sense. It had also ignored the route available under paragraph 5(3)(d) of Schedule 1.

[12] Sir Crispin submitted, in respect of the merits of the petition, that there was truly only one matter before the Sub-Committee on 14 December which was of relevance to the present petition, namely, the thirty five applications for grant of licences. Once these were before the respondents, they were obliged to grant them unless one of the matters mentioned in paragraph 5(3) of Schedule 1 applied or the respondents were in a position to exercise their discretion to refuse the licences under section 10(3). They could not in the circumstances exercise the discretion under section 10(3) because they could not on the material before them be satisfied that there was no significant demand which was unmet (or in any event were in fact not so satisfied). There had been no decision at the meeting of 14 December to depart from the policy. The effect of Coyle v City of Glasgow Council was that a licensing authority had to review the position of unmet demand whenever it was considering any individual application for licence. Only if at that time it was in a position to be satisfied that there was no significant demand for the services of taxis in its area which was unmet was the authority enabled to exercise the discretion conferred by section 10(3). The authority also required to consider and determine applications for licences within the timescale laid down by section 3, namely, six months. The reasons for the grants of the applications had been properly explained in the statement of reasons. On the material before it the Sub-Committee was entitled to conclude that it could not refuse the applications under section 10(3). The weight to be attached to that material was a matter for the Sub-Committee to assess (Hughes v Hamilton District Council 1991 S.L.T. 628 at p.632C-D). Its conclusion was neither irrational nor unreasonable in the Wednesbury sense. As to paragraph 5(3)(b) of Schedule 1, the Sub-Committee had not been asked to refuse the applications under that sub-paragraph; it was clearly conscious of paragraph 5(3) (as the reference in the statement of reasons in the absence of other grounds for refusing the applications demonstrated); it was not for an applicant for a licence to satisfy the authority on the matter (Glasgow District Licensing Board v Din 1995 S.C. 244); paragraph 5(3)(d) could not be used in effect to circumvent the test laid down in section 10(3) (Barclay v Renfrewshire Council, Extra Division, 3 April 2001 - now reported at 2001 S.L.T. 647). Even if the decision of the Sub-Committee involved a change of policy, that was a course which it was entitled to take (Elder v Ross and Cromarty District Licensing Board 1990 S.L.T. 307 at p.313).

[13] In respect of the respondents' preliminary pleas, Sir Crispin submitted in the first place that the substance of the petitioners' complaints was such as might have been the subject of an appeal by them to the sheriff under paragraph 18 of Schedule 1. Having failed to invoke their right to a statutory appeal the petitioners could not now secure a remedy by judicial review (O'Neill v Scottish Joint Negotiating Committee of Teaching Staff 1987 S.L.T 648, per Lord Jauncey at p.650; Ingle v Ingle's Trustee 1999 S.L.T. 650 at p.654). Coyle v City of Glasgow Council and Douglas v City of Glasgow District Council 1996 S.L.T. 713 were examples of situations where like issues had been taken on appeal to the sheriff. Sir Crispin submitted a separate argument that if, contrary to his submission, any decision by the Sub-Committee "to depart from its then existing policy of limiting the number of taxi licences in South Ayrshire to 27" could properly be regarded as a decision made prior to and in isolation from the decision to refuse the 35 applications for licences and for that reason was not appealable as such to the sheriff, the petitioners had no right to object to such a decision (being one ex hypothesi not yet implemented by a decision on any application for a licence) and thus had no title to sue the present petition. Reference was made in this connection to Inverness Taxi Owners and Drivers Association v Highland Council 1999 S.L.T. 1316 and to PTOA Ltd v Renfrew District Council 1997 S.L.T. 1112. At the resumed hearing Sir Crispin presented a further argument in support of a plea that the petitioners were barred by mora, taciturnity and acquiescence, having failed at the appropriate stage to challenge the respondents' decision of 7 September 2000. The plea also sought to rely on the interests of good administration. Reference was made in this connection to R. v Dairy Produce Quota Tribunal for England and Wales, ex parte Caswell [1990] 2 AC 738 and Kwik Save Stores Ltd v Secretary of State for Scotland 1999 S.L.T. 193.

[14] Mr Dewar in response to the argument on competency submitted that what was implicit in the Sub-Committee's decision of 14 December was a radical departure from its previous policy of not allowing more than twenty seven licences. The decision on that date went beyond the grant of the thirty five applications. In a like situation it had been held that the matter was not adequately covered by the statutory appeal procedures and that accordingly an application by judicial review was competent (City Cabs (Edinburgh) Ltd v City of Edinburgh District Council 1988 S.L.T. 184, per Lord Cullen at p.186). The present petitioners' interest was not only to reduce the thirty five licences granted but to reduce the whole decision of the Sub-Committee, including the departure from policy which underlay it. The court should be slow on grounds of competency to deny to the petitioners a remedy. Sir Crispin's arguments on title to sue and on mora were without substance.

[15] I address first the issue of competency. Paragraph 3 of Schedule 1 to the 1982 Act makes provision for the making of objections or representations to an application for the grant of a licence (including a taxi licence). Subject to certain conditions, the licensing authority is obliged to entertain such objections or representations. It may, before reaching a final decision upon an application, give any person who has made such an objection or representation an opportunity to be heard by it (paragraph 4(2)). The present petitioners through their solicitor made a representation in relation to the thirty five applications and their solicitor was heard by the Sub-Committee before it reached its decision on 14 December. As persons who had made a representation the present petitioners were under paragraph 17 persons entitled to request and to receive reasons in writing for the Sub-Committee's decision. They made such a request and received a statement of reasons. Paragraph 18 of Schedule 1 provides -

Paragraph 18(8) empowers the sheriff to hear evidence by or on behalf of any party to the appeal and paragraph 18(12) entitles any party to such an appeal to appeal from the sheriff's decision to the Court of Session on a point of law.

[16] In my view the complaints which the petitioners make in this application for judicial review are in substance matters which might have been made the subject of an appeal to the sheriff under paragraph 18. Their primary complaints, which I have earlier attempted to summarise, amount in effect to contentions that in approaching the exercise of their discretion under section 10(3) (or in approaching whether they were or could be satisfied that the pre-condition to the exercise of such a discretion was met) the Sub-Committee erred in law in one or more respects or exercised their discretion in an unreasonable manner. The sheriff was entitled under paragraph 18 to allow on such grounds an appeal against the grant of the licences. In doing so he would have been entitled and bound to have regard to any contentions advanced in relation to any "departure" (insofar as applicable to the grant of licences under appeal) from the authority's previous policy in relation to the number of licences from time to time in issue. Such "departure", insofar as relevant, was necessarily incidental to its decision to grant a further thirty five licences and amounted in effect to a non-application on that occasion of any policy of restriction on the ground of an absence of significant and unmet demand for the services of taxis in South Ayrshire. Indeed, in light of the decision and reasoning in Coyle v City of Glasgow Council it is difficult to see that the adoption of a policy as to a maximum number of taxi licences can have any practical effect other than in the context of considering particular applications for grant. While an optimum number may, it seems, be identified and used as a guideline, a licensing authority, on any occasion when it is considering an application for grant and is addressing (if appropriate) the matter of demand, will require to take a view, based on information or other material before it, as to whether or not the "guideline" remains applicable. In Coyle v City of Glasgow Council the court, after referring to an earlier exercise which had resulted in identification of a particular number, said at p.456C -

[17] In City Cabs (Edinburgh) Ltd v City of Edinburgh District Council Lord Cullen entertained as competent an application for judicial review of a decision by a licensing authority in respect of taxi licences. But, first, both the locus standi of the petitioners (associations of taxi operators) and the competency of the application were in that case conceded. Secondly, and more importantly, the decision there sought to be brought under review was not one made in the context of any application for grant. Accordingly, the petitioners in that case could not have invoked the procedure of objection to the application with a statutory appeal against any grant. Thirdly, the case was decided at a time when the use of waiting lists and the adoption and general application of policies relative to numbers were not regarded as objectionable. Such practices have no doubt, with other authorities as with the respondents, been re-visited in the aftermath of the decision in Coyle v City of Glasgow Council. Accordingly, City Cabs (Edinburgh) Ltd v City of Edinburgh District Council does not, on a proper analysis, provide support in my view for the competency of the present petition.

[18] Insofar as concerns paragraph 5(3)(d) of Schedule 1, this ground was not relied on by the petitioners either in their written representation or in their oral presentation to the Sub-Committee. An express reference to that paragraph was made for the first time only after this petition had been served. Mr Dewar submitted that nonetheless the respondents as licensing authority ought to have been alive to their right (and obligation) to refuse the applications on the basis of that paragraph and that no reasonable authority properly instructing itself on the relevant law would have failed to do so. If that is right, then an appeal to the sheriff on that ground was likewise available. I suspect that it would have received short shrift. It is difficult, having regard to the rights and interests of the applicants for licences, to see how the Sub-Committee acting fairly could have refused their applications on that ground without at least that paragraph and any basis for invoking it having been duly raised and the applicants given an appropriate opportunity to respond. The Sub-Committee, in my view, had no obligation to raise that sub-paragraph ex proprio motu. But, if it had, then its failure to do so would, as stated, have been a matter appealable to the sheriff.

[19] In O'Neill v Scottish Joint Negotiating Committee for Teaching Staff Lord Jauncey, consistently with earlier authority, observed at p.650 -

Observations to the like effect were made in Ingle v Ingle's Trustee at p.654. In these circumstances this application must, in my view, be dismissed as incompetent.

[20] In these circumstances it is unnecessary to deal with the other preliminary arguments raised by Sir Crispin. Nor is it strictly necessary to reach any opinion on the merits. However, as the merits were fully argued it may be appropriate that I express my views, albeit briefly, on them.

[21] In my opinion the procedures adopted by the Council prior to the meeting of 14 December in no way fettered or otherwise limited the exercise of the powers or discretions available to the Sub-Committee on that date. The issue of invitations to persons on the waiting list and the public advertisement of the Council's preparedness to consider applications from others (along with those already submitted) did not commit the Council to grant all or any of the applications made. It was bound to have regard to the merits of each application considered in the context of such information, if any, as it then had of the level of demand for taxi services in its area. If on the basis of such material it were to be satisfied that there was no significant demand which was then unmet, it would in such circumstances have been entitled (but not bound) to refuse all the applications. In some circumstances the grant of some but not all of the applications might have been justified. If, however, such information as was before it was not such as to satisfy it that there was no significant unmet demand, the pre-condition to the exercise of the discretion under section 10(3) would not have been met. All these possibilities, which depended not only on the results of surveys or other fact-finding exercises instructed by the Council but also on any material placed before it by interested parties, remained open until a decision was reached at the meeting of 14 December. The petitioners' first basis of complaint is accordingly, in my view, without substance.

[22] Nor did the Sub-Committee err in law in its approach to section 10(3). On a fair construction of the statement of reasons sent on 22 December the Sub-Committee's decision did not proceed on the basis that it was for objectors to satisfy it that there was no significant unmet demand. Objectors were, of course, entitled to put material before the Sub-Committee in support of that proposition and the petitioners' solicitor did so by written representation and by oral presentation. The Sub-Committee noted what he had had to say (including such limited concessions as he then made) but concluded that the material placed before it by him (and also other material available to it from other sources) did not satisfy it that there was no significant unmet demand. Not being so satisfied, it properly concluded that the discretion in section 10(3) was not available to be exercised. The petitioners' second basis of complaint is accordingly, in my view, unfounded.

[23] As regards the third basis, the petitioners in their pleadings refer to "legitimate expectations" on the part of the petitioners. Mr Dewar also referred in argument to this concept. But the categories referred to by Simon Brown L.J. in R. v Devon County Council, ex parte Baker are not, in my view, apt in the present circumstances. Here the petitioners were persons who were entitled to and did make a representation to the Council in respect of the applications. They clearly had in these circumstances an interest in the Council addressing their objections and determining the applications in accordance with law. They were heard in relation to such criticisms, including lack of comprehensive treatment, as they might have of the Colin Buchanan and Partners' report and in relation to other aspects of the Sub-Committee's discharge of its statutory function in respect of the applications. But, in so far as concerns section 10(3), the Sub-Committee had first to be satisfied that the statutory pre-condition was met. In that respect it required to make a judgement on the basis of the material before it. I am not persuaded that the Sub-Committee's judgement was one which no such body acting reasonably could have made. In that respect the petitioners' third basis of complaint fails.

[24] Insofar as concerns paragraph 5(3)(d) of Schedule 1, it cannot, in my view, be said that the Sub-Committee acted unreasonably. Refusal of a licence is mandatory if "there is other good reason for refusing it". It was not suggested to the Sub-Committee that there was any "other good reason" why it should refuse the applications or any of them under this provision. The whole discussion before it turned on section 10(3). No opportunity was afforded to the applicants for the licences to meet any suggestion that their applications should be refused under paragraph 5(3)(d); far less was any ground for doing so identified. The consequences of a refusal would have been that, in the absence of a material change of circumstances, a fresh application could not have been made for at least a year (Schedule 1 paragraph 6). Barclay v Renfrewshire Council at paragraph [14] makes it plain that paragraph 5(3)(d) is not unlimited in its application and, in particular, cannot be used to distort the proper operation of section 10(3). Had the Sub-Committee seen fit in the circumstances to refuse the applications under paragraph 5(3)(d) its action would rightly have been said to have been grossly unfair and prejudicial to the applicants, if not otherwise challengeable in law. It cannot convincingly be said that any authority acting reasonably would ex proprio motu have invoked and applied that provision. In these circumstances the petitioners' final basis of complaint is also, in my view, unfounded.

[25] However, having come to the view on competency which I have, I shall sustain the respondents' first plea-in-law and dismiss the petition.