Scottish Sheriff Court Decisions

The Sheriff having resumed consideration of the appeal, of consent REPELS the first plea-in-law for the appellant; REPELS the second plea-in-law for the appellant; SUSTAINS the plea-in-law for the respondents, finds the appellant liable to the respondent in the expenses of the Appeal as taxed; and appoints the Respondents to make up an account thereof and remits same, when lodged, to the Auditor of Court to tax and to report.

1. This is an appeal in terms of the Civic Government (Scotland) Act 1982 ("the Act") Schedule 1 Paragraph 18 against the decision of the Respondents made on 20 November 2003 to refuse the Appellant a taxi operator's licence in terms of Section 10 of the Act. At the hearing at which the application was refused the licensing committee of the respondents heard from the Appellant's solicitor and had before them objections from Tayside Police.
2. At the hearing before me on 1 June 2004 Mr G Murray, Solicitor, Messrs RSB Macdonald, Solicitors, Dundee, appeared for the Appellant and Miss M Moran, Solicitor appeared for the Respondents. No evidence was led before me and we proceeded to a debate.

3. The following statutes and authorities were before me:-

   Civic Government (Scotland) Act 1982

   Din -v- City of Glasgow District Licensing Board 1996 SLT 363

   Middleton -v- Dundee City Council 2001 SLT 287

   Moughal -v- Motherwell District Licensing Board 1983 SLT (Sh Ct) 84

   McDowall -v- Cunninghame District Council 1987 SCLR 587

   City of Glasgow District Council -v- Doyle 1995 SLT 327

   Wardie Property Company Limited -v- Secretary of State for Scotland 1984 SLT 345

   Piper -v- Kyle and Carrick District Council 1988 SLT 267

   Douglas -v- City of Glasgow District Council 1996 SLT 713

   Sangha -v- Bute and Cowal Divisional Licensing Board 1990 SCLR

   Texaco Ltd -v- City of Glasgow Licensing Board 1998 GWD 37 - 1932

   Hughes -v- Hamilton District Council 1998 SLT 628

   Cigaro (Glasgow) Ltd -v- City of Glasgow District Licensing Board 1983 SLT 544

   Fitzpatrick -v- Glasgow District Licensing Board 1978 SLT (Sh Ct) 63

   JAE (Glasgow) Ltd -v- City of Glasgow District Licensing Board 1994 SLT 1164

   Ranachan -v- Renfrew District Council 1991 SLT 625

   Mejury -v- Renfrewshire Council (Inner House), 28 November 2000;

   Appellant's Arguments

4. Mr Murray began by referring to two earlier hearings which the appellant had had before the respondent's licensing committee. On 17 September 2003 the appellant was invited to attend a hearing in relation to his existing taxi driver's licence to decide whether this licence should be suspended. In the event the respondent's licensing committee took no action and allowed the appellant to continue to hold his taxi driver's licence which had first been issued to him in 1997.

5. At a hearing on 6 November 2003 the respondent's licensing committee considered an application made by the appellant for a private hire taxi licence. The committee decided that the appellant was not a fit and proper person to hold such a licence and refused the application.

6. On 20 November 2003 a similar hearing took place before the respondent's licensing committee at which they considered an application by the appellant for a taxi operator's licence. The committee decided that the appellant was not a fit and proper person to hold a taxi operator's licence and refused this application also.

7. Mr Murray indicated that no appeal had been taken against the refusal to grant a private hire taxi licence but this appeal had been taken against the refusal to grant a taxi operator's licence as at each of the three hearings the Licensing Committee had had before them the same police objections yet had reached a different decision in relation to the first application than they had in the latter two. Mr Murray accepted that different criteria might apply in relation to different types of licence. McDowall -v- Cunninghame District Council (supra) at page 589.

8. The background to these hearings, Mr Murray indicated, was that in June 2001 the respondents adopted a policy to issue no taxi operator's licences in excess of 507. There had been pressure on this figure following a number of court cases. An earlier policy of allowing widows of taxi operators to apply for licences to continue their late husbands' business had been departed from. As a result situations such as the one involving the appellant had arisen where de facto some taxis had been operated by persons other than the licensed operator. As a means of managing the situation Mr Murray stated that the respondents had weeded out cases where this had occurred and when attempts had been made to regularise the position, applications had been refused.

9. I was referred to Schedule One Paragraph 5(3)(a)(ii) to the Act the effect of which is that if the Licensing Committee opinion is that an applicant is not a fit and proper person to hold a licence they should refuse the application. The corollary to that however is that the committee ought to grant a licence unless it is established the applicant is not a fit and proper person to be such a licence holder.

10. Mr Murray invited me in terms of Schedule One paragraph 18 to the Act to remit the case back to the Licensing Committee or reverse their decision to refuse the appellant a taxi operator's licence.

11. It was Mr Murray's contention that the Licensing Committee's decision of 20 November 2003 was both wrong in law and unreasonable.

12. I was referred to the leading case of Wardie Property Company Limited -v- Secretary of State for Scotland (supra) and the opinion of Lord President Emslie at pages 347 and 348 where in the context of an appeal against the decision of the Secretary of State to refuse planning permission it is stated:-

    "A decision of the Secretary of State acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided to him. In particular it will be ultra vires, too, if the Secretary of State has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fall to be quashed if it, or any condition imposed in relation to a grant of planning permission is so unreasonable that no reasonable Secretary of Sate could have reached or imposed it."

    The Lord Present then went on to quote a line of authority backing up the proposition stemming from the well known case of Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948] IKB 223.

13. Mr Murray contended that in the present case the Licensing Committee's decision involved a material error of law and a breach of natural justice.

14. As regards whether the appellant is a fit and proper person to hold a taxi operator's licence I was referred to Mejury -v- Renfrewshire Council [supra] Lord Prosser at paragraph [5] where in delivering the Court's opinion he stated:-

    "The correct legal approach, in appeals against decisions such as this, is not in dispute, and was acknowledged by the Sheriff who observed that it was not for the Sheriff, on appeal, to replace the authority's view with his own. Equally, as Ranachan [supra] made clear, it was for the authority to determine what might be said to be in the interests of the public in its own area in deciding what weight to attach to any conviction or other factor, and again not for the Sheriff to reconsider the issue of weight and possibly replace the authority's view with his own."

15. Mr Murray referred to Ranachan -v- Renfrew District Council [supra] at page 628 where Lord McCluskey giving the Court's opinion stated:-

    "In our opinion, it was for the committee to make their own assessment as to whether or not the fact that the applicant had, on the occasion which resulted in these convictions, behaved in the manner outlined to them was something that bore upon the fitness of that person to hold a taxi driver's licence. It is impossible to say that they would have been unreasonable had they taken into account, for example, the possibility that the respondent, if granted a licence, might well find himself late at night faced with difficult customers whose behaviour might provoke him to some reaction, and had been apprehensive as to how he might react. Equally it would be impossible to say that members of the committee would have been unreasonable if they had felt that, as elected representatives answerable to the general public, they should restrict the grant of such a licence to persons who came before them with no unspent convictions, and against whom there was no other similar black mark."

16. Mr Murray accepted that the Licensing Committee had a discretion in determining applications. In applying that discretion the committee had to determine the appropriate weight to be applied to the various factors under scrutiny in the application.

17. Mr Murray referred to the respondent' letter of 28 October 2003 (sic) which contained the statement of reasons for the refusal of the appellant's application for a taxi operator's licence. The letter stated:-

    "The Committee refused your client's application on the ground that he was not a fit and proper person to be the holder of a taxi licence. This was because the Board accepted the circumstances detailed in the appendix to the enclosed objection by the Chief Constable were essentially accurate. The applicant's agent sought to submit that any admission of plate hiring was produced only under threat of criminal charges for fraud. The Committee did not accept this version of events. Moreover the Committee noted, in any event the business relationship between the applicant and the late Mr Holden as outlined to them by the applicant's agent confirmed, essentially, the "plate hiring" arrangement which indicated his disregard for the proper system of taxi licensing in Dundee and, therefore, his unfitness to hold a licence.

    The appendix referred to in the respondent's letter giving police objections to the grant of a taxi operator's licence stated:-

    1. Exercising control and management over taxi licence 429 Ford Mondeo, R559 FBW whilst not being the true licence holder

2. Fraudulently declare to Paton's Insurance Services that the executors were requiring insurance to extend the licence of the late Mr Holden

3. Admit to "hiring" taxi licence 429 from Stephen Holden for "about two years".

18. Mr Murray said that from the above it could be concluded that the Licensing Committee disbelieved the appellant and accepted the police information contained in the objections. The committee were of course entitled to reach such a view in the normal exercise of discretion. However the statement of reasons did not indicate the weight which the committee had applied to the objections advanced by the police.

19. Mr Murray noted also that the respondent's answers to the summary application consisted simply of references to the statement of reasons but no further specification was given. He made it clear however that he was no longer insisting on the point taken in the application that the Licensing Committee had refused to fix a hearing where evidence could be heard.

20. The appellant's fundamental point was that at the first hearing when the Licensing Committee had called in the appellant's taxi driver's licence they had decided to take no further action to suspend or revoke the licence on the same police objections which were later used to refuse the appellant's application for a taxi operator's licence.

21. Notwithstanding the Licensing Committee's subsequent change of position Mr Murray said that the respondents had failed to specify in their statement of reasons what weight they had applied to the police objectives. It was clear from the terms of the respondent's letter that the appellant's previous convictions mentioned by the police in a second appendix to their letter of objection had apparently formed no part of the Licensing Committee's decision to refuse the licence.
22. Accordingly it was contended that the respondents had failed to specify to the appellant which criteria applied to applicants for taxi drivers, private hire and taxi operator's licences. As a result the appellant was unaware of any differences in criteria and weight applied to the various types of licence.

23. In Mr Murray's submission the respondent's failure to properly inform the appellant amounted to error in law or unreasonableness of the type defined in Wardie (supra). The respondents had failed to specify the considerations which they had applied when reaching their decision on the weight they had attached to the objections outlined by the police. I was therefore invited to sustain the appellant's second plea-in-law and remit the case back to the Licensing Committee to re-consider their decision.

    Respondent's Arguments

24. Miss Moran began by contending that no objection appeared to be being taken about what was said at the committee hearing. She re-iterated that where the committee was of the opinion an applicant was not a fit and proper person they were obliged in terms of paragraph 5(1) and (3) of Schedule One to the Act to refuse the application.
25. The legislation also made it clear that decisions of this sort were a matter for the committee. I was referred to Din -v- City of Glasgow District Licensing Board (supra) and the opinions of the court delivered by Lord McCluskey at page 363A where he states:-

"It cannot be the obligation of the board to respond in detail to each and every point of evidence or submission which is raised in the course of proceedings."

26. I was referred also to Middleton -v- Dundee City Council (supra). Lord Philip delivered the opinion of the court and at paragraph [6] stated:-

"Parliament has left the decision on propriety and fitness to hold a taxi licence to local committees because they are considered to be best placed to assess the needs of, and the standards of service appropriate to their area and, to that end, to determine the calibre of individual who is to be entrusted with the provision of this important public service. In our view the court should be slow to lay down hard and fast rules of general application as to the matters which are relevant or irrelevant to the considerations of these questions by committees."

27. Miss Moran stressed that different considerations might apply to different types of licence. She referred to McDowall -v- Cunninghame District Council (supra) at pages 590 and 591 where the Lord Justice-Clerk Ross stated:-

"A taxi [operator's] licence may be issued to a person who does not drive and who does not hold a taxi-driver's licence. Accordingly the fitness of the applicant as a driver is not an issue when a licensing authority are considering whether or not to grant or renew a taxi [operator's] licence."

It followed Miss Moran contended that the converse also applied in relation to a taxi driver seeking an operator's licence, that different considerations would apply and the committee would have to pay particular regard to the fitness of the applicant to be a taxi operator.

28. Miss Moran said that at the hearing before the licensing committee the appellant had admitted having a taxi plate improperly. Taxi licence 429 had been issued to a Mr Holden who had operated a Ford Mondeo car registered number R449 FBW. While Mr Holden held a taxi operator's licence apparently finance for this vehicle had been obtained in Mr Petrie's name and when Mr Holden had died insurance for the vehicle had been transferred to Mr Holden's executors in an attempt to continue to operate the vehicle.
29. Miss Moran explained that there had been a limit on the number of taxi operator's licences and consequently a waiting list of persons who sought such licences. Mr Holden's licence should have been handed in on his death but the appellant had effectively owned and operated Mr Holden's taxi over a period of 2 years up to and beyond Mr Holden's death.
30. It was accepted that the licensing committee had identical objections before them when they had considered the continuance of the appellant's taxi driver's licence and his application for a private taxi hire and taxi operator's licence. They had however considered each licence separately and had acted appropriately.
31. I was referred to Piper -v- Kyle & Carrick District Council (supra) at Page 269B -C where the opinion of the court states:-

"The fact that the committee did hear the appellant's representative and considered his personal circumstances shows quite plainly that they were not applying a rigid rule and were not disabling themselves from exercising their discretion in this case."

32. While there had been a limit on taxi operator's licences during 2003, it was clear from Douglas -v- City of Glasgow District Council (supra) at p. 717 and the terms of section 10(7) of the Act that had the committee thought it appropriate they could have granted the licence. However, the licensing committee had heard representatives on the appellant's behalf before reaching their decision not to grant a taxi operator's licence. The committee had therefore considered the appellant's circumstances as well as the other information before them.
33. Even if the licensing committee had made an error in allowing the appellant's taxi driver's licence to continue, they were not bound to follow their previous decisions. Texaco Ltd -v- City of Glasgow Licensing Board (supra).
34. As had been accepted in McDonald -v- Cunninghame District Council (supra) at p. 590 "the two applications were not on all fours" and in the present case it was clear the licensing committee had no difficulty in allowing the appellant to continue to drive a taxi but for the stated reasons did not think him a fit and proper person to be a taxi operator.
35. As regards the statement of reasons which had been issued to the appellant, Miss Moran referred to Ranachan -v- Renfrew District Council (supra) at page 628 where the court stated :-

"In our view, it is not necessary for a 'statement of reasons' to condescend in detail upon the precise thinking which lies behind the reasons actually given; indeed there being several members of the sub-committee, it is clear that different members might have attached different weight and significance to the various considerations before the sub-committee."

36. It was submitted that the test in Wardie had not been made out in that it had not been unreasonable given the circumstances for the licensing committee to refuse the application. Accordingly the appeal should be dismissed and the matter not remitted back to the licensing committee to reconsider.

Decision

37. In his submissions Mr Murray had referred to the taxi operator's licence regime which subsisted in the period up to consideration of the appellant's case. Some of this information can be found in the case of Black -v- Dundee City Council, Dundee Sheriff Court 16 May 2002. The Judgement of Sheriff A L Stewart QC can be found on the Scottish Court Service website.
38. It is understood that the policy of not having more than 507 operator's licences is now under review following the decision of my colleague Sheriff R A Davidson in the case of Dundee Taxi Cab Company -v- Dundee District Council and Dundee Taxi Association (Dundee Sheriff Court 20^th May 2003). This case is currently under appeal by Dundee Taxi Association to the Inner House of the Court of Session.
39. Be that as it may I have to consider the individual circumstances of this case as much as any context within which they may be.
40. The statement of reasons did not merely "parrot" the note of objections furnished by the police. As well as referring to the reasons, the respondent's letter indicated that they had undoubtedly listened to the representations made by the appellant. The letter went on to state that they did not accept that the appellant's admission of unlawful taxi-plate hiring was only made under threat of prosecution. The Committee's view was that the appellant's actions indicated a disregard for the proper system of taxi licensing in Dundee.
41. It was clear both from what had taken place at the hearing and the representations made before me that the appellant accepted he had effectively operated the late Mr Holden's taxi for a period without seeking to regularise matters with the respondents.
42. I appreciate that the regime operated by the respondents during the period the appellant de facto operated a taxi and at the time the application was made has to some extent been discredited.
43. While the Dundee Taxi Cab Company case remains at appeal it appears that my colleague's decision in the matter was accepted by the respondents and in any event a fresh exercise to formulate a policy on taxi operator's licences is underway.
44. Nevertheless at the time the application was considered the respondents had before them information which appeared to directly impinge upon the fitness of the applicant to hold a taxi operator's licence. It is clear from the statement of reasons that the appellant's explanation was considered but the respondents concluded the police objections were accurate since the actuality was not in dispute. The appellant confirmed that he had effectively operated a taxi without a licence and had for a period been circumventing the policy, rules and regime which the respondents had been operating.
45. In terms of McDonnell (supra) it is not surprising therefore and indeed in the respondents' favour that while they accepted the appellant's conduct did not preclude him from driving a taxi it was a different matter in relation to the operation of a taxi or private hire vehicle.
46. The considerations that the respondents' committee clearly had in mind when considering the appellant's application were highly relevant to the type of licence that was being sought c.f. Wardie v Secretary of State (supra).
47. It is also clear from the respondents' statement of reasons that the appellant's position was considered - Piper -v- Kyle & Carrick District Council (supra) and in my view appropriate weight was given to the objections before the committee - Middleton -v- Dundee C C (supra); Texaco Limited -v- Glasgow Licensing Board (supra).
48. Given the nature of the objections which the committee found to be established and indeed were admitted by the appellant it would be difficult for any such committee to have reached the appropriate decision.
49. For these reasons this appeal must fail. It may be however, given the change of regime and circumstances since the infringements relating to the late Mr Holden's licence occurred, that a similar application in due course may be viewed differently by the committee. That however is entirely a matter for them and would involve consideration of all the circumstances which prevailed at the time both in relation to the licensing policy, the applicant's personal circumstances and his performance as a licensed taxi driver.

Expenses

50. I see no reason why expenses should not follow success in this matter and accordingly I find the appellant liable to the respondent in the expenses of the appeal as taxed.