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Cameron v. East Fife Area Regulation Sub-Committee Fife Council [2005] ScotSC 42 (11 July 2005)

B126/2004

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT CUPAR

JUDGEMENT OF

SHERIFF G J EVANS

in causa

MURRAY CAMERON

residing at

13 Queen Gardens, Anstruther, Fife

PURSUER

against

EAST FIFE AREA REGULATION SUB-COMMITTEE

FIFE COUNCIL

County Buildings

St Catherine Street

Cupar

Fife

DEFENDERS

CUPAR, 11 July 2005. The Sheriff, having resumed consideration of the cause, FINDS-IN-FACT:-

The parties are as designed in the instance.

The pursuer trades in North East Fife selling hot food from a motor van. To do so he requires a Street Trader's Licence in terms of Section 39 of the Civic Government (Scotland) Act 1982. He has for 12 years or so traded from inter alia a layby outside Kilrymont Annex to Madras College on Kilrymont Road, St Andrews.

On 2 December 2004 the defenders considered an application by the pursuer for the grant of a new licence in terms of Section 39 of the Civic Government (Scotland) Act 1982. There were 2 objections to the pursuer's application. The first was from the Rector of Madras College on behalf of the Board of Studies at Madras College and the second was from Fife Council Transportation Services.

On the said date the defenders allowed the said application for a Street Trader's Licence. In doing so, they imposed a geographical condition that the pursuer did not trade within 100 metres of the curtilage of Kilrymont annex, Madras College, St Andrews, thus excluding the pursuer from the layby.

On the pursuer applying for reasons for the decision on 7 December 2004, the defenders issued written reasons to the pursuer's agents on 22 December 2004 as per 7/1 of Process.

When the pursuer's application for a licence called before the committee on 2 December 2004, Councillor W Sangster indicated to the committee that he felt that he should declare an interest in the pursuer's application on the basis that he sat on the Madras College School Board. Councillor Sangster is not a member of the Madras College School Board.

The chairman of the committee indicated to Councillor Sangster that all members of the committee were entitled to attend School Board Meetings and Councillor Sangster was advised that he "could not get out of it that easily."

Previous to the decision, the Madras School Board met on 10 May 2004 at Madras College, with Councillor Sangster, Councillor J Liston and the Rector of Madras College, Mr L S G Mathieson all present. At that meeting the Board agreed to write to the Licensing Department at Cupar regarding the renewal of licensing of plans, but no such letter was received by the defenders. The minutes of the School Board show that Councillor Liston was to advise the Chair of the Board as to when the Licensing Committee was to sit.

The subsequent meetings of said Board are as accurately recorded in the minutes thereof, viz items 1, 2 and 3 of the pursuer's third inventory of productions.

When the Committee came to consider the pursuer's application for a licence, Councillor Sangster and Councillor Liston were present and participated in the decision taken by the Committee. Mr Mathieson, Rector of Madras School was present as an objector in respect of the objection submitted on behalf of the Board of Studies at Madras College.

FINDS-IN-FACT-AND-IN-LAW:-

Councillors Sangster and Liston, while not entitled to be members of the Madras College School Board, were entitled to attend and speak at Board Meetings, in terms of Section 5(2) of the School Board (Scotland) Act 1988.

The Rector, Mr Mathieson, while not entitled to be a member of the Madras School Board, was entitled to be present and speak at the Board Meetings, in terms of Section 5(3) of said Act.

The guiding principles for Councillors deciding inter alia on an application for a Street Trader's Licence are to be found in the Standards Commission for Scotland's Councillors' Code of Conduct and the revised guidance on Section 7 thereof entitled "Taking Decisions on Individual Applications." (vide items 4 and 5 of the defenders' second inventory of productions).

There is a reasonable suspicion of bias by Councillor Sangster in his contribution to the Committee's decision of 2 December 2004 from the terms of the minutes of the Madras College School Board's meeting of 16 September 2004.

There was a reasonable likelihood of Councillors Sangster and Liston being influenced in favour of an exclusion zone for renewal of the pursuer's licence by their attendance at the Madras College School Board meetings when such matters were discussed.

The defenders, by allowing Councillors Sangster and Liston to continue to sit on the East Fife Area Regulation Sub-Committee while it decided the pursuer's application for a Street Trader's Licence, acted contrary to natural justice.

Accordingly Reverses the decision of the defenders made on 2 December 2004 to grant the application by the pursuer for a Street Trader's Licence subject to an exclusion zone of 100 metres from Kilrymont School, Madras College, St Andrews to the extent of remitting the case to the defenders for reconsideration of their decision by a differently constituted committee, ie one excluding Councillors Sangster and Liston and that before the beginning of the Autumn school term 2005; Fixes a hearing on expenses on 17 August 2005 at 9.45am.

Sheriff

NOTE:-

INTRODUCTION

This was a hearing on a summary application brought by a street trader against a sub-committee of Fife Council that was responsible for granting his licence but attaching to it an exclusion zone of 100 metres from the Kilrymont Annex to Madras College, thus preventing him from parking at and trading from his usual place at lunchtime in a layby outside the Annex. Mr McDonald, Solicitor, Kirkcaldy appeared for the pursuer and Miss Barrie, Solicitor for Fife Council for the defenders. Parties dispensed with the necessity for leading evidence and dealt with the application on the basis of the Record and various productions lodged by each side. I have made Findings-in-Fact on the basis of the pleadings and productions.

SUBMISSIONS

Mr McDonald informed me that the only grounds of appeal he proposed to argue were firstly that the defenders acted contrary to natural justice and secondly that they exercised their discretion in an unreasonable manner (vide paragraphs 18(7)(c) and (d) of Schedule 1 to the Civic Government (Scotland) Act 1982). He no longer sought to argue that the defenders had based their decision on any incorrect material fact. His primary submission was the first one, that the Committee had acted contrary to natural justice. The same councillors who sat in on the School Board meetings, which discussed renewal of chip van licences operating near to the school, viz Councillor Sangster on 31 March 2004, both Councillors Sangster and Liston on 10 May 2004 and Councillor Sangster on 16 September 2004 (vide Board Minutes items 1 and 2 of the pursuer's second inventory and item 1 of the pursuer's third inventory) along with the Rector, Mr Mathieson, also sat on the sub-committee on 2 December 2004 which had considered an objection made by Mr Mathieson on behalf of the School Board before coming to the decision which is now the subject of appeal. While it was accepted that the Councillors were not members of the School Board, and there was in any event no objection made directly in name of the School Board, the fact remained that justice had not been seen to be done. The Councillors were part of the discussion leading to the decision of the School Board to make an objection and an objection was made by Mr Mathieson who was at that point representing the views of the Board. Had the pursuer known the background, he would have taken steps to exclude the Councillors from the Committee's decision. It was manifestly unfair and contrary to natural justice that the decision was reached in a less than open and transparent manner. Councillor Sangster had not even been given a chance to fully explain what the conflict of interest was at the Committee meeting and had merely been told abruptly that he couldn't get out of it that easily. I was referred in argument to the following cases, viz Barr v British Wool Marketing Board and Others 1957 SLT (Notes) 11, Cigaro (Glasgow) Ltd v City of Glasgow Licensing Board 1983 SLT 549 and Clive Mcindoe v Glasgow District Licensing Board 1989 SCLR 325. It looked decidedly odd to the pursuer that he had been singled out and dealt with in this way by the Committee. Other vehicles, such as an ice cream van, had not been dealt with in the same way.

As to the reasons given by the Committee, viz road safety issues and issues over litter, the police had said that they had no road safety concerns and there had been no previous accidents there in all the years that the pursuer had been trading. Having his chip van operate further away might create even greater road safety issues. There was no real issue about litter either. Condition 9 of the Conditions that were attached to a Street Trader's Licence by Fife Council East required every street trader to collect and remove any litter brought about by his trading (vide item 3 of the pursuer's second inventory of productions).

I was invited to sustain the grounds argued and allow the appeal, in which event I should modify the decision by removing the exclusion zone rather than remit it back to the Council for reconsideration, as allowed in paragraph 18 of the Schedule 1 to the Act. I was referred to the cases of Coppola v Midlothian Licensing Board 1983 SLT (Sh Ct) 95 and Botterills of Blantyre v Hamilton District Licensing Board 1986 SLT 14.

In reply, Miss Barrie dealt first with the argument on natural justice. The only 2 letters of objection before the sub-committee on 2 December 2004 had been from Fife Council's Transportation Services and from Mr Mathieson, the Rector, on behalf of the Board of Studies (vide letter of reasons for the decision dated 22 December 2004). It was important to grasp that the Board of Studies was an internal Board of Management within the school and no Council members were actually members of the Board of Studies. A letter from the Rector dated 17 February 2005 (vide item 2 of the defenders' second inventory of productions) confirmed that neither Councillor had been present at the Board of Studies meeting which made the decision to object to the pursuer's application and that highlighted the distinction between them. There was nothing in the pleadings to suggest that any members of the sub-committee had any part in the decision by the Board to object to the pursuer's application. A "School Board" was a creature of statute (vide School Boards (Scotland) Act 1988). As was provided by Section 5(2) and (3) of the Act,

"(2) a Councillor for an electoral ward which falls wholly or partly within the catchment area of a school shall be entitled to attend and to speak at, any meeting of a School Board for the time being established for that school; but no Councillor shall be a member of a School Board for the time being established for a school situated within the area of the Council.

(3) the head teacher of a school shall

have the right and, if requested by the School Board, the duty to give advice to the Board on any matter within the Board's competence;

have the right to be present and to speak at meetings of the School Board but shall not be a member of the Board."

Thus neither the Councillors nor the Rector were members of the Board but they could attend and proffer advice. The School Board minutes of the meeting of 31 March 2004 did not suggest that the Board then took a view. All it stated was "Licensing of Vans: Councillor Sangster reported that the possibility of marking the KR bus bay "BUSES ONLY" was being invested by Fife Council Transportation Department. Existing chip van licences come up for renewal in July." That was Councillor Sangster providing information rather than a view. The import of this and the other pre-decision meetings of the School Board showed that Councillors were providing a means of liaison between the local authority and the School Board, providing information, giving advice and reporting on related matters. That was their role. There was nothing in any of the minutes to suggest that either Councillor had expressed a personal view on the application. They had properly confined their role to that of giving advice and information to the Board to enable the Board to make its own decision on the matter. The role of a Councillor was circumscribed by the Councillors' Code of Conduct compiled by the Standards Commission for Scotland (vide items 4 and 5 of the defenders' second inventory of productions, reference being made to paragraph 7 of item 4 and paragraphs 21, 22, 23 and 28 of item 5). The particular Councillors complained of had fulfilled their Code of Conduct and refrained from expressing a view. Miss Barrie did not demur from the test set down in 'Barrs' supra of the tribunal dealing fairly and equally with the parties before it in arriving at its decision, but nothing had appeared in the instant case to suggest that justice had not been done. There was nothing to suggest that the Councillors concerned had prejudged the issue before the Committee. I should reject this particular ground of appeal.

Turning to the other ground of appeal, Miss Barrie made the initial comment that the ice cream van trader's licence was not yet up for renewal and that would not happen until November 2005. Whether it would be renewed or not would be considered on its merits. On the matter of road safety, it was accepted that there had been no police objection on that ground. There had, however, been an objection by the Fife Council Transportation Services which stated inter alia:-

"Road safety for children could be compromised with children being attracted on to the road and footpath around the van, all to the detriment of road safety."

The subject was touched on at length in the Statement of Reasons as follows:-

"With regard to road safety, the Sub-Committee were of the opinion that the location of the van in the immediate vicinity of the school in the bus layby would encourage children to congregate there. Kilrymont Road is a relatively narrow road in a mainly residential area but the overall width is greater where it includes the width of the layby. That point is one where large numbers of children would be present or passing at lunchtimes prior to dispersing along surrounding roads and paths where the crowding or groups of children would tend to thin out.

The Sub-Committee considered that the presence of your client's van at this location, combined with the persons likely to be customers, namely 12-15 year-old children would create road safety hazards, particularly risks to children crossing the road at this busy pedestrian area."

The subject of litter was also dealt with in the Statement of Reasons in the following manner:-

"The Sub-Committee were also concerned about littering, particularly food containers, wrappings and foot itself discarded by children using your client's van. While the Sub-Committee did acknowledge and appreciate that your client picked up litter in the public area around his van before he left each day, it would not be possible for him to clean all sorts of litter in the vicinity, for example, litter that was discarded or blown into private property."

The Committee were entitled to take those views and it could not be accepted that they insufficient material before them in order to reach these conclusions. It could not be said that they had exercised their discretion in an unreasonable manner.

If, contrary to her submissions, I sustained the appeal, I was invited to remit it back to a differently constituted Committee. I was referred to the dicta of Lord McCluskey in Matchurban Ltd v Kyle and Carrick District Council 1995 SLT 505 at 506I-J:-

"... Parliament has decided that the decision on matters of this kind should be taken by the local licensing authority and there would need to be compelling reasons for removing from such an authority the responsibility for taking such decisions."

DECISION

Dealing with the grounds of appeal in reverse order, ie firstly with whether or not the defenders exercised their discretion in an unreasonable manner, the road safety issues, which were merely raised in outline by the objectors, were obviously fleshed out by the Sub-Committee's own local knowledge. From the terms of the Statement of Reasons, it appears that a concern of the Sub-Committee was that where the van normally sat near to the school in a bus layby would encourage children to congregate. The local geographical knowledge on which that was based is stated as follows:-

"Kilrymont School is a relatively narrow road in a mainly residential area where the overall width is greater where it includes the width of the layby. That point is one where large numbers of children would be present or passing at lunchtimes prior to dispersing along surrounding roads and paths where the crowding or groups of children would tend to thin out."

On the basis of that knowledge, the Sub-Committee came to the conclusion that the presence of the pursuer's van at that location, combined with the likely age of his customers, viz 12-15 year olds, "would create road safety hazards, particularly risks to children crossing the road at this busy pedestrian area." The Sub-Committee were entitled to draw inferences from the material before them on the basis of local knowledge and experience and to act on their impression and knowledge of local conditions (vide Risky Business Ltd v City of Glasgow Licensing Board 2000 SLT 923). Thereafter, the weight to be given to the various factors is a matter for the discretion of the Sub-Committee (vide Texaco Ltd v City of Glasgow Licensing Board 1998 GWD 37-1935). On the question of litter, the Sub-Committee mention in their Statement of Reasons that while they did appreciate that the pursuer normally picked up litter in the public areas around his van before he left each day, they considered that it would not be possible for him to clean all sorts of litter in the vicinity, for example, litter that was discarded or blown in to private property. It seems to me that this raises legitimate concerns about the limitations on what the pursuer himself might be able to do to contain litter and I do not think that this aspect of the Committee's approach can be questioned.

The main ground of appeal is the one that has given me most concern, viz whether or not the defenders have acted contrary to natural justice. I accept that Miss Barrie has correctly stated the position in law of both Councillors and Rector as being entitled to be present at a meeting of the School Board but meant to be in an advisory capacity only and not to be taking part in the Board's decisions. She is correct too to a large extent in her claim that the minutes of the meetings do not disclose any attempt by either Councillors to influence the outcome of the Board's deliberations on whether or not to object to the renewal of the pursuer's licence. On 31 March 2004, Councillor Sangster reported in a neutral way that Fife Council were investigating the possibility of the bus bay in question being marked "Buses Only" and insisting chip van licences were coming up for renewal in July of that year. On 10 May 2004, Councillor Liston's role was limited to undertaking to advise the Chair of the Board "the date of the Licensing Board and also the situation regarding the double yellow lines." The other relevant minute relates to the meeting of 16 September 2004 and is more problematic for the defenders for it is recorded in that minute as follows:-

"Objection to Chip Van Licence Application. There was a full discussion about the possibility of objecting to the renewal of leases for street traders who operated near to the Kilrymont Road building. Grounds for objection included safety, health and litter. The positioning of street traders so close to the school building flew in the face of the Council's own policies on health and diet. Councillor Sangster felt that the school could ask that the bus bay should be reserved for bus parking during school hours, which would at least keep the traders away from the immediate precincts of the school. The Board will lodge an objection in principle to the Licensing Sub-Committee against the renewal of a licence to the current applicant, on the grounds stated above. Individuals may wish to add their own particular objections. The Rector will object on behalf of the school."

While Councillor Sangster is on one view only proffering advice, it is actually going a little further than that by him making a positive suggestion as to how the school might achieve its ends of creating an exclusion zone against street traders, rather than responding to and giving advice about the feasibility of what the Board was contemplating doing to achieve its own ends. This does suggest a bias in favour of those ends. I do not want to impede the work of Councillors who often have to give their services in more than one capacity and in more than one setting, but at the same time the Court has to be anxious to uphold the principle of fair and unbiased decisions (cf Lloyd v McMahon (1987) AC625 and Errington v Wilson 1995 SCLR 875). Given the suggestion of bias and the risk that the 2 Councillors in question may themselves have been influenced by the discussions that took place at the School Board meetings, I have come to the conclusion that, by having a Committee of 6 in number, 2 of whom included 2 Councillors who had sat in on the School Board's meetings over the months preceding the Committee meeting itself when the matter of the renewal of chip van licences and the creation of an exclusion zone had been raised and discussed, the defenders were acting contrary to natural justice. Mr Sangster's request that he should be excluded from the Committee deciding this matter, was not only commendable but with hindsight has proved entirely correct.

I disagree with the submission of Mr McDonald that the proper course at this point would be to modify the Committee's decision by deleting the reference to an exclusion zone. In view of Lord McCluskey's dicta quoted supra, I am minded to refer the matter back to a newly constituted Committee whose members would not include either Councillor Sangster or Councillor Liston, and in view of the importance of the decision to the pursuer's business, the Committee should meet and make their decision prior to the commencement of the new school term in August of this year. The procedural error in this case is not of such magnitude as appears to have been the case in the authorities cited to me by Mr McDonald. The presiding Sheriff in 'Coppola' supra (N.Thomson) remarked at page 98: "I think that acting contrary to natural justice to the extent that happened here (emphasis added) can only be met by a reversal of the decision in question." It is all a matter of degree. In that case, which involved an application for renewal of a hotel licence, a report which had been prepared by the Director of Midlothian District Council's Department of Environmental Health and Cleansing suggesting a disregard for cleanliness and food hygiene and expressing concern about the mis-management of the hotel in question, was considered by the Licensing Board and when they retired to discuss it in private, they surprisingly took the Director who had compiled the report with them. I can well appreciate that might it be thought in those circumstances that the hotel owner would have had no confidence in the ability of the Licensing Board to come to a fair decision after what had happened. In 'Botterills' supra, as I have already pointed out in the case of 'Mcindoe' supra at page 332, "The Sheriff took the view that it had been a long drawn out affair and that it was inevitable that attitudes would have hardened." That is far from being the case here and I see no reason why a differently constituted Committee could not now arrive at a proper decision.

As I was not addressed on the matter of expenses, I have put the case out for a hearing on expenses.