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JUDGMENT OF SHERIFF A.L. STEWART, Q.C.

in causa

JOHN BLACK

Appellant

against

DUNDEE CITY COUNCIL

Respondents

_______________________________



Act: K.M. Glass of Blackadders, Solicitors, Dundee

Alt: Stuart, Advocate, instructed by the Director of Support Services, Dundee City Council





DUNDEE. May, 2002

The sheriff, having resumed consideration of the appeal, SUSTAINS the plea-in-law for the appellant to the extent of finding that the respondents erred in law, REPELS the pleas-in-law for the respondents; ALLOWS the appeal; remits the appellant's application for a taxi licence to the respondents for reconsideration, which reconsideration must take place not later than 1 July 2002; FINDS the respondents liable to the appellant in the expenses of the appeal; APPOINTS the appellant to make up an account thereof and remits the same when lodged to the Auditor of Court to tax and report; CERTIFIES the appeal as suitable for the employment of counsel.



NOTE

INTRODUCTION

This is an appeal against the refusal by the respondents' Licensing Committee on 1 November 2001 to grant the appellant's application for a taxi licence. The appellant pleads that in refusing his application the Committee both erred in law and exercised their discretion in an unreasonable manner. The facts of the case were not in dispute, and the hearing before me took the form of a debate.

THE AGREED FACTS

Parties helpfully incorporated many facts in a joint minute of admissions. In addition I was referred to a letter dated 16 November 2001 from the respondents to the appellant's solicitor containing the reasons for refusal of the appellant's application. The terms of that letter were not in dispute. The facts which appear to me to be crucial to the appeal are:-


The appellant had for a number of years held a taxi licence granted by the respondents. This licence had to be renewed each year. In May 2001, when his licence was due for renewal the appellant failed timeously to apply for a renewal. He attempted to lodge his application late, but this was refused. The respondents' licensing division correctly advised him that he would require to lodge an application for a new licence.


The appellant lodged this application. It had been hoped that it would be dealt with by the respondents' Licensing Committee at their September 2001 meeting, but this did not happen, and the application was eventually considered at the meeting of 1 November 2001.


In June 2000 the respondents adopted a policy to issue no taxi licences in excess of the number of 507. This was a legitimate policy adopted by the respondents in conformity with their duty under the Civic Government (Scotland) Act 1982 (hereinafter referred to as "the 1982 Act").


For administrative purposes the respondents established a waiting list on which they invited prospective applicants for taxi licences to place their names. As the numbers of those holding taxi licences fell below 507 the prospective applicants whose names were at the head of the waiting list were invited to submit applications. Such applications were then considered by the respondents' Licensing Committee. For practical purposes, any applicant whose application was likely to be refused because of the respondents' policy of issuing no more than 507 taxi licences was invited to treat his application as deferred to a later meeting of the Committee or to withdraw his application and return to the waiting list. However, if any applicant insisted that his application should be heard, it was considered by the Committee.


At the meeting of the Licensing Committee of 1 November 2001 there were six members present. Applications for new taxi licences were dealt with in two parts. First, applications from those on the waiting list were considered. There were eleven of these and all were granted. This brought the number of taxi licences up to 507. The Committee then considered the appellant's application and applications from three other persons. These applications were described on the Committee's agenda as "non-waiting list".


The appellant was represented before the Committee by Mr Glass, Solicitor, Dundee. Mr Glass addressed the Committee. He explained that the appellant had inadvertently failed to make timeous application for renewal of his existing licence. Mr Glass pointed out that, unlike the Licensing (Scotland) Act 1976, the 1982 Act made no provision for a late application for renewal to be considered. He invited the Committee to treat the application as one for renewal, albeit lodged late. He informed the Committee that the appellant had held a taxi licence for many years, that the appellant operated a public house, and that his taxi operation consisted mainly in providing a courtesy car for patrons. The appellant had originally held a private hire licence, but had been advised to obtain a taxi licence instead. The appellant employed only one driver who relied solely on the appellant's taxi licence to provide him with employment. Since the appellant's failure to renew his licence this driver had been unemployed. Mr Glass expressed concern that the appellant's application had not been considered at the Committee's meeting in September 2001 and that at the present meeting it had not been considered until after applications by those on the waiting list had been dealt with. As the appellant's application was in effect an application for renewal he had been prejudiced by this procedure. Mr Glass reminded the Committee that they were not fettered by their policy but should consider each application on its merits. They should have regard to the long time for which the appellant had held a taxi licence and the fact that to grant his application would make only a marginal difference to the number of such licences in Dundee.


Following Mr Glass's submission several members of the Committee made observations. Councillor Powrie said that some thought should be given to the long years of service given by the appellant as a taxi operator and that the Committee should look to the personal circumstances of the appellant. Other members expressed the view that they could not look at the appellant's personal circumstances but were bound by the policy restricting the numbers of taxi licences to 507; that as that number had already been granted no further licences could be granted. Lord Provost Letford indicated that he felt tied by the policy. The Committee proceeded to a vote. Three members voted to grant the application and three voted to refuse it. Despite what he had said earlier, Lord Provost Letford voted for approval. The Chairman then stated that he would use his casting vote. He said that, while he had every sympathy with the appellant's position he could not take personal circumstances into account but was bound by the policy of issuing no more than 507 taxi licences. He used his casting vote on the side of refusal, and the application was accordingly refused.


The appellant requested the respondents to state in writing their reasons for refusal. By letter dated 16 November addressed to the appellant's solicitor the respondents responded to this request. This letter states inter alia:-

"... the Committee decided that the application should be refused since it was satisfied that there was no significant demand for the services of taxis which is unmet, in terms of section 10(3) of the [1982 Act] and that he had failed to convince the Committee that he should be granted a taxi licence notwithstanding this and the operation of the waiting list. At the time of considering the application, there were 507 taxi licences in the City of Dundee. On 28 June 2000 the Committee had resolved that no new licences above the figure of 507 should be granted and that any vacancies should be filled in chronological order by applicants on the waiting list which had been in operation since 1992. The figure of 507 had been determined as meeting demand for the services of taxis following a Survey Report commissioned by the Committee in co-operation with the local tax trade. The Committee considered the circumstances of [the appellant's] application and, in particular, that he had held a licence for a number of years without complaint and had inadvertently failed to apply timeously for renewal. However, it did not feel that the circumstances justified a departure from its policy. As Mr Glass had submitted, [the appellant] had simply failed to renew the licence. Although the reason given for this was that [the appellant's] colleague had failed to collect the renewal form, the responsibility for applying timeously rests with the licence holder. Further, no convincing reasons associated with the policy itself were advanced on his behalf. He failed to demonstrate any demand which would be met by the grant of his application nor as to why his application should be given preferential treatment over those on the waiting list. As there were no circumstances in [the appellant's] application to justify departing from the policy the Committee applied the policy and refused the application."

SUBMISSIONS FOR THE APPELLANT

Mr Glass began by stating that there was no dispute about the propriety of the Chairman's using his casting vote. However, the reasons given by the Chairman for using that vote in the way in which he did were very much in point. He had specifically stated that he considered that he was absolutely bound by the policy of not granting an application which would bring the number of licences above 507 and that he could not take the appellant's personal circumstances into account.

Mr Glass referred me to the terms of the 1982 Act, section 10(3) which states that a licensing authority may refuse an application for a taxi licence "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". He then referred me to paragraph 5(3) of the first schedule to the 1982 Act which provides inter alia that a licensing authority shall refuse to grant an application for a licence if "in their opinion [here follows a number of specific reasons none of which is relevant here] or (d) there is other good reason for refusing the application". "Other good reason" could include over-provision.

The appellant accepted that it was open to a licensing authority to formulate a general policy relating to demand or any other matter, provided that that policy was reasonable. However, if a licensing authority was given a discretion, it had to exercise that discretion taking the circumstances of each application into account. The authority could not blindly follow its policy. In any particular case they had to decide whether to apply the policy or depart from it. It was a balancing exercise. If a licensing authority applied its policy regardless they were guilty either of an unreasonable exercise of discretion or of an error in law in respect of not having attempted to exercise their discretion at all.

In the present case the Chairman of the Committee had made it quite clear that he considered that he had no discretion in the matter and that he was bound by the respondents' policy. This was exactly what the law said he should not do. As the Chairman's vote had been crucial, the Committee being otherwise equally divided, the respondent's decision should be revoked and the application remitted to them with a direction that it should be granted.

Mr Glass referred me to Elder v Ross and Cromarty District Licensing Board 1990 S.L.T. 307 and in particular to what was said by the Lord Ordinary (Weir) at the foot of p. 311 where he comments on the possibility of a licensing authority's having a policy and states, "Finally, the individual circumstances of each application must be considered in each case whatever the policy may be. It is not permissible for a body exercising a statutory discretion to refuse to apply its mind to that application on account of an apparent conflict with policy."

I was next referred to Martin v City of Dundee District Licensing Board 1995 S.L.T. 368 for the proposition that there is no obligation on a chairman of a licensing body to give reasons at a hearing for the decision of the body. Mr Glass accepted this as being a correct statement of the law, but submitted that if the chairman chose to give reasons, these reasons must be examined.

Mr Glass then referred me to Douglas v City of Glasgow District Council 1996 S.L.T. 713, a case which he submitted was on its facts very similar to the present one in respect that the licensing authority had considered itself bound by a policy and had failed properly to exercise its discretion. He referred me particularly to passages at p. 717 where in giving the opinion of the court the Lord Justice Clerk (Ross) emphasised the licensing authority's obligation to have regard to the personal circumstances of the applicant as well as to any policy which the authority may have formulated. The dictum of Lord Weir in Elder (cit. supra) was specifically approved. Mr Glass also referred me to what was said by the court at p. 718 regarding disposal of the case and I shall revert to that later.

The final authority to which Mr Glass referred me was Ranaldi v City of Edinburgh Council 2000 S.L.T. 297, a case which he accepted might at first sight appear to be against him but which he sought to distinguish. In that case a licensing committee unanimously refused an application for a taxi licence. Although the written reasons produced by the licensing authority were unchallengeable, the appellant founded on the fact that one member of the committee had, at the hearing, moved refusal on a ground which indicated a failure to exercise any discretion. The court refused the appeal from the sheriff (who had also refused the appeal) on the ground that the written statement of reasons should be regarded as the final expression of the collective reasons for the decision as compared with reasons expressed by individual committee members.

Mr Glass referred me particularly to what was said by the Lord Justice Clerk (Cullen) in giving the opinion of the court at p. 298 I:

"It is plain from the scheme of the 1982 Act that a statement in writing of the reasons for arriving at a decision is differentiated from the decision itself. Reasons for a decision may be required of the authority on a request being made by a relevant person within 28 days of the decision ... These reasons will normally be regarded as the final expression of the collective reasons for the decision. We say normally, since it is possible that, while there is no statutory provision to this effect, the licensing authority may anticipate such a requirement by giving their reasons at the time when they give formal notification of their decision. However, the reasons which individual members of the committee may give at the time when the committee is coming to a decision seem to us to stand in a different position. They are not the same as a fully considered statement of reasons which is given to an interested party for the purpose of informing him as to the full reasons for a decision and enabling him to decide whether or not he should proceed with an appeal.

"We would add that if the appellant's argument in the present case were correct, it would give rise to a number of practical difficulties, such as determining whether a reason expressed by one or more members of the committee at the time of arriving at their decision should be regarded as representing their collective will, and the extent to which it is or is not legitimate for further detail to be supplied at a later stage."

In the present case, Mr Glass submitted, the decision of the Committee had not been unanimous. The Chairman had in effect decided the issue by using his casting vote. He had made abundantly clear the reason why he had voted as he did. The Chairman's view in effect became the collective will of the Committee. The Committee's decision was therefore defective because the Chairman had failed to exercise his discretion.

So far as disposal was concerned, the application should be remitted with a direction to grant the application. The reasoning of the court in Douglas (cit. supra) was equally applicable here. In Douglas the court had taken into account the amount of time which had elapsed since the committee had reached the decision appealed against and the blatant disregard of the committee for the principles which they should have applied.

SUBMISSIONS FOR THE RESPONDENTS

Mr Stuart submitted that what I should have regard to was the written reasons for refusal and nothing else. If I accepted this submission I was bound to refuse the appeal as the written reasons were unassailable. The appellant was seeking to ignore the written reasons and to found on remarks made by one member of the committee. He was criticising what had happened at the hearing rather than the decision itself. The grounds of appeal were therefore ill-founded and irrelevant.

Counsel referred me to the terms of the 1982 Act, section 10(3) and paragraph 5(1) of the first schedule thereto. All of these provisions had been referred to by Mr Glass. Counsel also referred me to paragraphs 17(1), 17(2) and 18(1) of the first schedule. Paragraphs 17(1) and 17(2) relate to the giving of reasons in writing. Paragraph 18(1) provides that a person who has a right to require a licensing authority to give reasons may appeal to the sheriff. It was clear from all these provisions and the decision in Ranaldi (cit. supra) that there was a distinction between the hearing and what may have happened there on the one hand and the written reasons on the other. Counsel founded especially on the passage in Ranaldi which I have quoted above. The principle laid down there applied as much to the present case as it did in Ranaldi.

The other two members of the committee who voted for refusal may not have agreed with the Chairman. It was therefore impossible to say that the Chairman's view was the collective view of the Committee. What was said by the Chairman when using his casting vote should be ignored.

There had been no challenge to the statement of reasons. There was no suggestion that it had been given in bad faith or that there had been any impropriety. The written reasons demonstrated that the Committee had not fettered their discretion. Martin (cit. supra) made it clear that the only obligation on a licensing authority was to give a collective decision. The appeal should be refused.

If the appeal were to be granted, the application should simply be remitted to the respondents for reconsideration in terms of the 1982 Act, first schedule, paragraph 18(9)(a). The alternative of reversing the Committee's decision in terms of paragraph 18(9)(b) was not appropriate. There was no sound reason for not remitting. The mere passage of time did not mean that the situation could not properly be considered as it was in November 2001.

REPLY FOR THE APPELLANT

Mr Glass emphasised that what had been said in Ranaldi was that the written reasons should normally be all that was looked at. The present case was to be distinguished from the normal case because of the division in voting and the used of the Chairman's casting vote.

DECISION

The point in this case is, as was agreed on both sides of the bar, a short one. There is no dispute about the fact the Chairman of the Committee erred in law when explaining his reason for using his casting vote in favour of refusal. He said that he considered himself to be bound by the respondents' policy and could not take account of the appellant's personal circumstances. That this was incorrect is made clear by the cases of Elder and Douglas to which I have referred above. However, the submission for the respondents is that the reason why the application was refused was not the mistaken view of the Chairman but that stated in the written reasons contained in the respondents' letter of 16 November 2001.

The general rule is quite clearly stated by the court in the case of Ranaldi referred to above: it is the written reasons to which regard must be paid and not anything which may have been said by a member of the licensing authority in the course of any hearing before it. However, while that is the general rule, the court in Ranaldi recognised that there might be an exception to it. "Reasons for a decision may be required of the authority on a request being made by a relevant person within 28 days of the decision ... These reasons will normally be regarded as the final expression of the collective reasons for the decision. We say normally, since it is possible that, while there is no statutory provision to this effect, the licensing authority may anticipate such a requirement by giving their reasons at the time when they give formal notification of their decision." (per Lord Justice-Clerk Cullen at 2000 S.L.T. 298).

In Ranaldi the court emphasised that what had to be examined in an appeal against the decision of a licensing authority was the "collective reasons" for the decision, representing the "collective will" of the authority. These reasons were normally to be found in the written statement of reasons produced at the request of the appellant.

The present case differs from Ranaldi in at least one significant respect. In Ranaldi the decision of the licensing committee was unanimous. In this case the decision was taken on the casting vote of the Chairman, the members of the Committee having been equally divided. There is no dispute that the Chairman made the comments attributed to him and one can infer from what he said only that that was the reason why he used his casting vote as he did.

It is true that the written reasons for the decision are in themselves unchallengeable, but I find it puzzling that these reasons make no reference either to the fact that the Committee was divided on the issue or to the fact that the Chairman used his casting vote and did so on the basis of a misapprehension as to the law. Looking to the divided views on the Committee and the Chairman's comments, I have the greatest difficulty in seeing how the written reasons can truly be said to represent the "collective will" of the Committee.

In my opinion, the Chairman's remarks, given that his vote was crucial to the decision, may properly be construed as giving the reason why that decision was taken. Any objective observer listening to what was said would be hard pressed to form any other view. The case thus falls into the exceptional category referred to by the Lord Justice-Clerk in Ranaldi where a licensing authority gives reasons for its decision at the time when they give formal notification of their decision. Moreover, justice must be seen to be done, and to discount what the Chairman said in the context of this case would be to ignore that principle.

It was not disputed that what was said by the Chairman amounted to an error in law. This means that the decision of the Committee was based on an error in law and that the appeal should be allowed.

I do not consider that the appellant has established any unreasonable exercise of discretion. The ground on which I have held that the application was refused means that there was in effect no exercise of discretion. I have accordingly upheld the appeal on the ground of error in law only.

So far as disposal is concerned, I do not think that it would be appropriate for me simply to reverse the Committee's decision and to grant the licence. I should say in parenthesis that, contrary to what Mr Glass submitted, this is, in my opinion, an option clearly open to me looking to the terms of paragraph 18(9) of the first schedule to the 1982 Act. I do not think that, as in the case of Douglas to which I have referred above, the lapse of time since the decision which is appealed against was taken is sufficient to justify that course. The fact that the Committee was evenly divided does not suggest to me that, with a proper consideration of the applicable law, it would not be capable of exercising its discretion in an appropriate manner. As a general rule a sheriff hearing an appeal from a decision of a licensing authority should be slow to substitute his own decision for that of the authority. I have therefore decided that the application should be remitted to the respondents for reconsideration. As the matter is one of importance to the appellant and a final decision should not be unduly delayed, I have directed that this reconsideration should take place no later than 1 July 2002

EXPENSES

Parties were agreed that expenses should follow success. I have therefore found the appellant entitled to his expenses from the respondents. Counsel moved me to certify the appeal as suitable for the employment of counsel. Mr Glass said that he was content to leave this matter to me and acknowledged that the appellant had employed counsel to revise the pleadings. In my opinion, it is appropriate that I should grant counsel's motion.


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