Scottish Court of Session Decisions

In this petition, the petitioners, Inverness Taxi Owners and Drivers Association and their office bearers, seek reduction of two decisions of Highland Council as the licensing authority. The first is a decision of Highland Council's Protective Services Committee dated 2 September 1998; and the second is a decision of Highland Council dated 10 September 1998, ratifying and approving the Protective Services Committee's decision. The decision was that the Highlands be considered a single licensing area with no restriction on the number of taxis. More accurately expressed, the decision was that the area of Highland Council which is the licensing authority, be considered a single licensing area with no restriction on the number of taxis. The decision, it was determined also, was to take effect from 15 May 1999.

Two grounds were advanced in support of the reduction of these decisions. The first was that by reaching these decisions the licensing authority had fettered the future exercise of the discretion vested in it in terms of section 10(3) of the Civic Government (Scotland) Act 1982 (as amended by the Transport Act 1985) to refuse a licence if it was satisfied that there was no significant demand for the services of taxis in its area which was unmet. The second ground was that both the Protective Services Committee and the Council had failed to take into account a report by the Fraser of Allander Institute which was relevant and material to their decisions, and so both decisions should be reduced.

The respondent licensing authority submitted in limine that the petitioners had no title to sue and that the petition should therefore be dismissed. That plea in this case is clearly in my view independent of the merits of the two grounds advanced for reduction, and so I turn now to consider it. It was not disputed that if the petitioners established their title to sue, they qualified a relevant interest and accordingly had a right to pursue this action. In D & J Nicol v Dundee Harbour Trustees 1915 S.C.(H.L.) 7 Lord Dunedin, in a celebrated passage at pages 12-13 said:

The question is whether the petitioners are party to some legal relation giving them some right which the licensing authority against whom they have raised the action, has either infringed or denied.

Mr McCreadie who appeared for the petitioners, submitted that the intended lack of restriction on the number of taxis in the area of the licensing authority infringed the general right of the petitioners to make objection. The right to object or make representations is to be found in paragraph 3 of schedule 1 to the 1982 Act. It is in my opinion critical to note that the right in that paragraph is only in relation to an application for the grant or renewal of a licence. The licensing authority or any of its area Committees have not yet had before them any such application to which its decision can be applied. Indeed, that situation will not arise until after 15 May 1999 when, as I have said, this policy is to be applied within the area of the respondent. Mr McCreadie maintained that it was not premature to consider the matter now, and he referred me to a decision of Lord Penrose in City of Aberdeen Council v Local Government Boundary Commission for Scotland 1998 S.L.T.613 where his Lordship said at page 616:

This was said, of course, in an entirely different context from the present case, and as Mr Clarke for the respondent said, in this case context is everything.

The factual context can be stated fairly briefly before I return to consider the petitioners' title to sue this action. The area of the licensing authority is divided into eight, in conformity with the areas of the former District Councils. Each of these areas has a committee to whom applications for licences have to be made. I was informed that there are two areas of the licensing authority in relation to which it resolved that there should not be a requirement for taxi licensing. The major area of licensing in relation to taxis is Inverness. The licensing authority has delegated to the Inverness Area General Purposes Committee powers from its Protective Services Committee in relation to the licensing of taxis in its area in terms of the scheme of delegation and administration approved by the licensing authority on 1 April 1996. These powers relate to the implementation of licensing schemes adopted by the Protective Services Committee. I would understand that the decision of the Protective Services Committee that the Highlands should be considered a single licensing area with no restriction on the number of taxis, would be one that in terms of the scheme of delegation and administration would be observed by the Inverness Area General Purposes Committee. I express it that way because I received no submissions to the contrary. How far it has to be observed remains to be seen and that is a matter which I deal with later in this judgment.

The Inverness area is divided into two zones. Zone 1 is defined as an area within an eight mile radius of Queensgate Post Office, Inverness. Significantly, it includes Inverness Airport at Dalcross. Zone 2 covers the rest of the Inverness area. As at June 1998 there were 269 taxis licensed in the area of the licensing authority. Of these, 104 were in the Inverness area and 101 were in Zone 1 of that area. A report from the Fraser of Allander Institute of the University of Strathclyde in June 1998 which was commissioned by the Inverness Area General Purposes Committee, concluded that there was no evidence of a generalised unmet demand in Zone 1 of the Inverness area. On 18 August 1998 that Committee at a special meeting decided that in Zone 1 the number of taxis should be increased by a further 6, making 107 in all, in order that better provision should be made for the disabled by having these 6 adapted appropriately. Meantime, the Protective Services Committee's Civic Government Licensing Working Group, which was considering inter alia possible harmonisation of the Taxi Licensing Administrative Areas, recommended that the Highlands should be considered a single licensing area with no restriction on the number of taxis. In this connection they agreed that the report by the Fraser of Allander Institute should be made available to members of the Protective Services Committee at their special meeting on 2 September 1998, by placing it in the members lounge. The Protective Services Committee at their special meeting adopted the recommendation despite opposition which made reference to the report in their submissions. The Council, as I have already recounted, agreed at their meeting on 10 September 1998 to approve the decision of the Protective Services Committee by 40 votes to 16. In the course of the debate the Chairman of the Protective Services Committee, Mr W Fulton, confirmed that:

The reference to restrictive or protective practices is thought to refer to practices in the area of the Inverness Area General Purposes Committee, to which Mr Clarke referred me in some detail but I need not, I think, recount here.

Against that factual background I turn to reconsider the legal context, and that, as I see it, is whether the petitioners have an existing, generalised right to object to the two decisions which they seek to have reduced. If they do, the consequential question, of course, is whether that right has been infringed by these decisions. If they do not, it follows that they do not have a title to sue this action, it being accepted, as I have said, that they would have an interest to do so. I have to say that associated with these questions, is the question whether this application is premature. Prematurity, in other words, is tied in with the disputed right contended for. Another way of expressing this, as Mr Clarke said, is to ask whether there is at present a justiciable issue.

In Paisley Taxi Owners Association Ltd v Renfrew District Council 1997 S.L.T.1112 Lord Dawson considered this question in not dissimilar circumstances to those in the present petition. The reasoning for his conclusion on the question of title to sue is to be found in a relatively short passage of his judgment at page 1117B. He accepted that the petitioners would have had a right to object to any application for grant or renewal should such an application be made, but that did not give them a title to challenge a policy decision made by the licensing authority. The right to object did not arise until such an application was made. Accordingly he held that the petitioners had not established a valid title to sue.

Mr McCreadie sought to persuade me that this reasoning was wrong and that, if I had regard to Lord Clyde's reasoning in Scottish Old People's Welfare Council v Chief Adjudication Officer (appointed by the Secretary of State for Social Services) 1987 S.L.T.179, it would be apparent that the petitioners had a present and generalised right and title to sue this action. In this case the Chief Adjudication Officer issued a circular which purported to give general guidance with regard to extra payments for severe weather payments following a decision given by a tribunal of Social Security Commissioners. The petitioners argued that the guidance given was erroneous in law and ultra vires. Contrary to the submissions of the Chief Adjudication Officer Lord Clyde upheld the petitioners' title to sue. In doing so, his Lordship noted (at page 184L) that counsel for the respondents conceded that there was a justiciable issue. The matter upon which the parties were at issue with regard to the definition of the class of persons who had title, let alone an interest, to raise the point. His Lordship went on (at page 185D):

This last passage makes it very clear that because the legislation which that case was concerned with, conferred benefit on all members of the public whenever certain conditions arose, every member of the public had at least a title to sue. As Mr Clarke put it:"We all have a right to enjoy the Social Security system if we qualify". I agree with Mr Clarke that the relevant provisions of the Civic Government (Scotland) Act 1982 do not confer a comparable general right. The right under these provisions is to object, and that right is exercisable only in relation to a relevant application. Without an application, there is no amorphous right to object on the part of members of the public.

I am therefore of clear opinion that the petitioners, even if they qualified an interest, do not at present have title to bring this petition to reduce the decisions of the Protective Services Committee and the Council. Their challenge to them is premature since their right to object has not yet arisen. Since the petitioners have no title to sue, I will dismiss the petition. I am conscious that having reached a similar decision, Lord Dawson in the Paisley case proceeded to consider the merits of the application to the Court by way of judicial review. It is not for me to say that that was wrong: but I am not going to follow that course in this case. The licensing authority has in this case declared a policy. No alteration has, however, been made to the scheme of delegation to the Area Committees; and it remains to be seen how the policy is to be applied. Mr Clarke for the respondent said this in the course of his submission:

I have also set out earlier in this judgment what the Chairman of the Protective Services Committee said before the full Council. How far these statements may guide or inform Area Committees in reaching their decisions with regard to applications after 15 May 1999, is not for me to say. The conditions upon which a petition can be raised in order to review the decisions, may yet arise. Until they do, I decline to consider the merits of this application for judicial review.

I will therefore sustain the first and second pleas-in-law for the respondent and repel the petitioners' second pleas-in-law, and dismiss the petition.