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Cite as: [2005] CSIH 30, [2005] ScotCS CSIH_30
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The Dundee Taxi Cab Company Ltd v. Dundee City Council & Anor [2005] ScotCS CSIH_30 (18 March 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lady Cosgrove Lord Drummond Young Lord Cameron of Lochbroom
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[2005CSIH30] XA35/03 OPINION OF THE COURT delivered by LADY COSGROVE in APPEAL FOR SECOND DEFENDERS and APPELLANTS From the Sheriffdom of Tayside, Central and Fife at Dundee by THE DUNDEE TAXI CAB COMPANY LIMITED Pursuers and First Respondents; against DUNDEE CITY COUNCIL First Defenders and Second Respondents; and DUNDEE TAXI ASSOCIATION Second Defenders and Appellants: _______ |
Act: M. Bell; Boyles, Dundee (Pursuers and First Respondents)
Alt: McEntegart, solicitor advocate; Bennett & Robertson (for Anderson Fyfe, Glasgow) (Second Defenders and Appellants)
18 March 2005
[1] The respondents in this appeal are the Dundee Taxi Company Limited who are a company providing private hire car services in the Dundee area. In August 2002 they submitted an application to Dundee City Council, who are the licensing authority for the taxis in their area under the Civic Government (Scotland) Act 1982 ("the Act"). Their licensing function has been delegated to a sub-committee ("the committee"). The respondents' application was for the grant of taxi licences in respect of the 71 motor vehicles which they have been operating on private hire licences since in or about 2000. The only objection to the said application was from the appellants, the Dundee Taxi Association, an association of taxi licence holders in Dundee. The application was refused by the committee, but the respondents appealed to the sheriff who allowed the appeal and ordered that the application for the 71 licences be granted. The appellants have exercised their right as a party to the appeal to the sheriff to appeal to this court against that decision under para 18(12) of Schedule 1 to the Act. It may be noted that the committee, who were represented before the sheriff, appear to have accepted the wide "coach and horses" consequences of the decision to grant 71 licences in that they were not a party to the appeal before this court. [2] The issue of taxi and private hire car licences is regulated by section 10 of the Act. In order to understand the distinction between the two types of licence it is necessary to look at the terms of section 23 of the Act. Section 23(1) provides that:"'taxi' means a hire car which is engaged, by arrangements made in a public place between the person to be conveyed in it (or a person acting on his behalf) and its driver for a journey beginning there and then; and
'private hire car' means a hire car other than a taxi within the meaning of this subsection".
It thus appears that the essential distinction between the two is that a taxi can ply for hire and be signalled to stop in a public place, and can be picked up by a passenger at a taxi rank. The fares and charges for taxis are fixed in terms of the Act; the charges for private hire cars are unregulated. Further, in terms of section 10(3) of the Act, the licensing authority has a discretion to refuse to grant a taxi licence in order to prevent a situation where it becomes impossible for licensed taxi operators to provide a proper service on economic or other grounds due to an excessive number of licences. There is no corresponding provision in relation to licences for private hire vehicles.
[3] Section 10(3) of the Act, as amended, with which this appeal is concerned, provides:"Without prejudice to paragraph 5 of Schedule 1 to this Act, the grant of a taxi licence may be refused by a licensing authority for the purpose of limiting the number of taxis in respect of which licences are granted by them if, but only if, they are satisfied that there is no significant demand for the services of taxis in their area which is unmet."
"that the number of taxis in the city be fixed at 507 and should the number fall below this figure, then the first applicants on the waiting list be invited to apply for licences".
That recommendation followed upon a comprehensive survey into taxi services in the city completed in May 2000.
[5] The committee's reasons for their decision to refuse the respondents' application are given in their letter to them dated 12 September 2002 and are stated in the following terms:"After considering the oral and written submissions, the Committee decided unanimously to refuse the applications. It was satisfied that there was no significant demand for the services of taxis in the area which was unmet in terms of Section 10(3) of the Civic Government (Scotland) Act 1982. The figure of 507 taxis as representing the figure above which there would be no significant unmet demand had been set following a comprehensive survey into taxi services in the city. Although a fresh survey was underway, this is not expected to report until next year. The figures produced by you certainly showed an increase in the amount of business your company is doing, but could not, by themselves, indicate that there is any significant demand not capable of being met by the existing number of taxis as identified in the survey. The Committee decided that the circumstances of the applications did not justify departing from its policy of limiting the number of taxis in the city. The Committee can give little weight to the commercial interests of applicants or existing operators. If customers wish to take advantage of your services then, as Mr McEntegart pointed out, they can do so by telephone. As far as the recent grant of two licences is concerned, the Committee felt that these were exceptions to the policy and not that this was an abandonment of the policy. The Committee was also mindful of the fact that your company is neither at the top of, nor indeed is it on, the waiting list at all. For these reasons, the Committee decided to exercise its discretion under Section 10(3) of the said 1982 Act by refusing your applications."
"It was true that their approach was based on an historical figure but it was a matter of recent history. There was no other evidence, one way or the other, before the committee apart from the result of the June 2000 survey."
We also observe that, before the sheriff, Mr. McEntegart adopted the submissions made on behalf of the committee and specifically conceded that "the licensing committee had no current assessment of demand before it from any local authority official." We consider that there is no indication whatsoever in the decision letter that the committee had material before it which gave any indication as to the up-to-date position. It is perfectly plain from the terms of that letter that, apart from the survey report of May 2000, all that was before the committee at their meeting on 5 September 2002 were two matters, namely information that a fresh survey was underway and was due to report during the following year and a submission on behalf the applicants as to an increase in the customer demand for the service provided by the company. We consider that these matters, far from providing any support for the validity of the 507 figure, ought to have raised a question in the minds of the committee as to whether that remained an appropriate measurement of demand at that point in time. In any event, a rejection by them of the applicants' submission that the increase in the company's business was indicative of the existence of unmet demand does not, as was faintly argued on behalf of the appellants, assist in any way in satisfying the onus on the committee of establishing its absence.
[9] Section 10(3) gives the committee a discretion to refuse to grant a licence "if, but only if, they are satisfied that there is no significant demand for the services of taxis in their area which is unmet." As the court observed in Coyle, the use of the present tense throughout the condition shows that the committee's assessment must be made in relation to the situation at the time when the application falls to be considered. In other words, when making a decision the committee require to be aware of the current level of demand and there is a clear onus on them to be satisfied that there has been no change in the level of demand. The statute does not provide how this should be done. The Lord President (Rodger) expressed the view (at p 456) that where a figure has been determined, all that is required is that the matter should be kept under review by an official who has the information to judge whether the demand has increased since the matter was last considered. It was argued on behalf of the appellants that this was only an example of what might be done and that the sheriff had placed undue emphasis on the fact that the committee had not carried out any such checking of the position since the survey was carried out. We can detect no error of approach by the sheriff. He did not attempt to prescribe how the committee could satisfy themselves about this matter. On the contrary, what he said was that they must do so "however that is to be done". [10] We are satisfied that in the circumstances of this case the sheriff was correct to conclude that there was no proper basis on which the committee could be satisfied that there was no significant unmet demand and that the discretion to refuse the application in terms of section 10(3) of the Act was not available to them. We accordingly reject the first ground of appeal. [11] In disposing of the appeal the sheriff decided not to remit the case to the committee for re-consideration and concluded:"in the absence of their being able to conclude that there was no significant unmet demand for the services of taxis within their area they would have been obliged to grant the application. I shall accordingly grant an order reversing the decision of the licensing committee of 5 September 2002 and order that the application be granted."
The second ground of appeal advanced before us was that the sheriff erred in reaching that conclusion. It was submitted that even if the committee could not in the circumstances refuse the application, they were not bound to grant it and they still required to exercise their discretion in terms of para 5(3) of Schedule 1 to the Act. That provision is in the following terms:
"A licensing authority shall refuse an application to grant or renew a licence if, in their opinion -
...
(d) there is other good reason for refusing the application;
and otherwise shall grant the application".
Read short, paras (a) - (c) of subsection (3) relate, in the case of an application for a taxi licence, to the fitness of the applicant and the suitability of his vehicle. The submission on behalf of the appellants was that the fact that the applicant was not on the committee's waiting list for a taxi licence may well have been viewed by the committee as amounting to an "other good reason" for refusing the application. Since their view had never been sought on that matter, the sheriff should have remitted to them for re-consideration. Reference was made in this connection to Barclay v. Renfrewshire Council 2001 S.L.T. 647, a case concerned with an application for the renewal of an existing taxi licence rather than the grant of a new application. In our view this case does not assist the appellants' argument. On the contrary, we consider that it supports the view that para 5(3) requires to be read together with section 10(3) bearing in mind the purpose of the power conferred by the section and the circumstances in which it comes into play.
[12] Two points arise in relation to this ground of appeal. First, no such argument was presented to the sheriff and it was never suggested to him that the terms of para 5(3) of Schedule 1 were an issue for consideration in this case. The sheriff was asked to address section 10(3) and he did so. Secondly, the provision confers a discretion on a licensing authority to decide what in their opinion amounts to an "other good reason". If they were to reach the view that the absence of an applicant's name from a waiting list amounted to such, they would then be required, in view of the mandatory terms of the opening words of the subsection, to refuse his application on that ground. [13] We reject this ground of appeal. Section 10(3) confers a power on a licensing authority to refuse an application for a licence in order to prevent overprovision. This discretionary power is tightly drawn and can only be exercised provided they have satisfied themselves, on the basis of appropriate information as to the current level of demand, that that there is no unmet demand. In practical terms this means that having made an assessment of the level of demand and arrived at a yardstick figure, the licensing authority has a discretion to refuse an application if, but only if, the number of existing taxi licences exceeds that figure. It is only if an upper limit is set in that way that a waiting list will, or may, be necessary. If the authority does not operate within the strict terms of section 10(3) there is no power to restrict the number of licences granted on the ground of overprovision and in that event no need for a waiting list. The opening words of the section are "without prejudice to paragraph 5 of Schedule 1 to this Act" and it is, in our view, quite incompatible with the meaning and effect of what follows to suggest that the fact that an applicant's name is not on a waiting list can constitute an "other good reason" in terms of paragraph 5. [14] The absence of an applicant's name from a waiting list may be a circumstance to which a licensing authority are entitled to have regard in the exercise of the general discretion conferred on them by section 10(3). But it can, in our view, be no more than that. Having regard to the restricted circumstances in which the power conferred by the section may be exercised, we do not consider that it can have been the intention of Parliament to enable a licensing authority to elevate the status of an informal waiting list so that absence from it may constitute an "other good reason" compelling them to refuse to grant a taxi licence. [15] Since we have identified no error of law in the sheriff's decision, we shall refuse this appeal.