Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 21

XA42/14

Lord Brodie

Lord Malcolm

Sheriff Principal Stephen QC

OPINION OF THE COURT

delivered by LORD MALCOLM

in the cause

by

ROBIN BIRRELL

Appellant and Respondent:

against

GLASGOW CITY COUNCIL

Respondents and Appellants;

Act:  Skinner;  Drummond Miller LLP

Alt:  Anderson QC, Blair;  Glasgow City Council, Corporate Services

18 March 2015

[1]        Mr Robin Birrell applied to Glasgow City Council for a street trader’s licence to allow him to carry fare-paying passengers in a pedal powered rickshaw, known as a pedicab.  The matter was considered by the Council’s Licensing and Regulatory Committee, and, on the basis of certain safety concerns, was refused.  The committee noted that passengers were not provided with individual three-point seatbelts, and that the pedicab had no roll cage.  The evidence led on behalf of Mr Birrell was to the effect that such safety features are not feasible.  In addition the committee was concerned about the absence of official build standards for pedicabs.  In reaching these views the committee relied upon advice tendered by the Chief Constable of the then Strathclyde Police, and by the Executive Director of the Land and Environmental Services Department of the Council (LES) following upon an inspection of the pedicab

[2]        Read short, paragraph 5(3) of Schedule 1 to the Civic Government (Scotland) Act 1982 provides that a licensing authority shall refuse such an application ,

“if, in their opinion – (c) (the) vehicle ... is not suitable or convenient for the conduct of the activity having regard to (its) condition (and) the nature and extent of the proposed activity.”

It was under reference to those provisions that the application was refused.

[3]        Mr Birrell was successful in an appeal against the committee’s decision heard by the sheriff at Glasgow.  The sheriff took the view that there was no material to support the refusal, and that any reasonable committee would have granted the application.  He quashed the refusal and remitted the matter to the committee with an order to grant the application.  The sheriff’s decision has been appealed to this court.

[4]        At the outset of his submissions, counsel for Mr Birrell stated that, although the sheriff reached the correct decision, he was not supporting any of the sheriff’s reasoning.  In these circumstances we content ourselves with only a few observations as to the sheriff’s judgment.  We are satisfied that he erred in taking the view that there was no material to support the refusal.  He appears to have approached the case on the basis that the committee was not entitled to follow the advice on safety concerns tendered by the Chief Constable and the Executive Director of LES, which he described as opinions unsupported by any factual basis.  He stated that there was no evidence of any accidents involving pedicabs, and no evidence that three-point seatbelts would provide additional safety for passengers.  (It can be noted that the pedicab provides a single lap belt to be used by all passengers – it having the capacity to carry three passengers.)  According to the sheriff, the absence of official standards was of no importance since it was the responsibility of the Council’s inspection centre to assess the integrity and safety of the pedicab.  He concluded that the decision was irrational and in breach of the rules of natural justice.  Furthermore the committee should not be given a second chance to justify its decision.

[5]        Contrary to the view taken by the learned sheriff, we are of the opinion that there was more than sufficient material before the committee to support and justify the decision.  The pedicab could not be fitted with individual three-point seatbelts, nor with a roll cage.  For reasons that are not difficult to understand, this was a matter of concern for both the Chief Constable and the Executive Director.  Bearing in mind that the relevant statutory provision requires the committee to form its own opinion on such issues, its members were fully entitled to conclude that those features were “essential to provide for the reasonable safety of members of the public” in the event of an accident or collision, thus the vehicle was not suitable for the proposed activity.  It is important to remember that the court cannot review the merits of the administrative decision, which is essentially a discretionary judgment for the committee.  This is perhaps particularly so in respect of safety issues, which are often matters of impression.  The weight to be attached to any factor is again for the committee, not the court.  The question is not whether the decision was correct, but whether the committee was entitled to reach it.

[6]        Before this court, the submission of counsel for Mr Birrell was that the committee erred by imposing safety features additional to those required by the Vehicle and Operator’s Services Agency (VOSA) for vehicles of this nature.  A certificate in respect of the pedicab granted by a vehicle examiner on behalf of VOSA operating under the terms of section 58 of the Road Traffic Act 1988 was before the committee.  If that examiner was satisfied, the committee had no power to refuse the application by reference to the concerns noted earlier.  Mr Skinner said that the committee could not “second guess” government regulations and standards on the design and construction of such vehicles.  The only possible view was that, having obtained the VOSA certificate, the vehicle must be taken as suitable for its proposed use, with or without seatbelts and a roll cage.

[7]        In our opinion there is no merit in this submission.  Contrary to Mr Skinner’s approach, the committee was not adding to, nor even addressing any standards imposed by government regulations under the 1988 Act.  It was reaching its own opinion as to whether the pedicab was or was not suitable for plying for hire under a Council licence in Glasgow.  Having regard to the views tendered by the Chief Constable and the Executive Director of LES, it concluded that it would not be appropriate to grant the licence for the reasons set out above.  The provisions of Part II of the 1988 Act and regulations made thereunder do not address the question before the committee.  A VOSA certificate does not usurp the jurisdiction of a licensing authority under the 1982 Act.  In terms of paragraph 5(3) of Schedule 1 to the Act, the committee is obliged to exercise its own independent judgement upon any application.  While no doubt a different committee might reach another view, the concerns flowing from the absence of individual three-point seatbelts and a roll cage are uncomplicated and easily understood.  Mr Skinner repeatedly emphasised that pedicabs would not travel at high speed;  however, the same cannot be said of other vehicles which might collide with a pedicab.

[8]        In short, we are not persuaded that the presentation of the VOSA certificate prohibited the committee from taking the view that the pedicab was not suitable for its intended use.  On the contrary, the committee would have been failing in its duty if it did not have regard to the advice of the Chief Constable and LES, and, as required by the relevant statutory provision, form its own opinion.  We have had regard to the full terms of the note of argument and the other material presented in support of the sheriff’s decision;  however we are satisfied that there was no sound basis for interfering with the discretionary administrative decision taken by the committee.  We shall uphold the appeal and quash the sheriff’s decision.  The effect of this is that the committee’s decision to refuse the application is reinstated.