Taxi Driver Online

youve just infringed my copywrite can you send your name and address so I can sue?

looks like the start of many disgruntled letter writers http://www.eveningtelegraph.co.uk/outpu ... tters.shtm

I'm not sure if the case directly addresses the currency of a survey and is thus not a good precedent on that point.

As I read it it seems to be saying that if there is no current survey then there needs to be some assessment of demand, but I don't think it's saying that there has to be a survey every time applications are considered.

So to that extent it may differ from English law in that during the currency of the survey (as defined by the surveyors) the LA can rely on it as evidence of no SUD.

I suspect that the effect of this judgement is that it requires LAs to make some assessment of demand when considering applications between surveys, but it doesn't affect the currency of a survey as recommended by the surveyors.

The big unanswered question seems to be how demand might be measured during the currency of a survey, but the case neatly sidesteps that, because clearly it wasn't relevant to the decision - what was relevant was that no assessment of any kind had been made. I think the sheriff in the earlier case left the point similarly unadressed, but I lost the will to live while reading that case, so never quite finished it

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".

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What I said is stated below in bold type. The Courts found that the council was not in a position to refuse licenses because it had not advised itself if there was a demand that was not being met. The time frame in which the court used was the period of the last survey being 2000 from memory, to 2002. The Scottish court by their verdict deemed that two years was too long a period for a council to be satisfied that there was no unmet demand.

The court implied that the council in some way should have advised itself of the level of demand that existed. that could be done by having a top up survey or a fully comprehensive survey. The fact remains that in this particular case the courts deemed 2 years as too long a time to go without advising itself regardless of how it did that.

What a council shouldn't do is refuse an application before "it is sure of any unmet demand". This is exactly what Dundee council did and left themselves wide open for a legal Challenge.

Regards

JD

I wouldn't disagree with your paragraph in bold John, but I'm not so sure that the court set any kind of precedent with regard to the currency of surveys.

What it seemed to say was that a survey was effectively out of date until the next one insofar as some assessment must be made between them, but a full survey is not required.

Thus the currency of an independent survey per se was not ruled on, only what an LA must do between them to satisfy itself regarding SUD.

Thus presumably if a survey said it had a shelf life of three years (say)then during that period the LA must consider the question of demand by other means when considering applications.

But after the three years an interim assessment conducted by the LA itself is inadequate, and an new independent survey is required.

Thus if Dundee CC had made some assessment of demand when considering the applications then presumably 203020 would have had no case.

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NO.....MR T...

If they deemed a survey to be out of date by two years in this case, then they have indeed set a precedent. We have to temper that precedent in the light of this case and the circumstances in which it was applied.

In the absence of any other evidence, I would suggest the following precedent applies. Any Authority in Scotland who has not advised itself of the presence of demand at the time an applicant applies for a hackney carriage license and any unmet demand survey being older than two years five months, then that survey will not be valid.

What I'm saying is that a precedent has been set under these particular circumstances. If you introduce other circumstances like the one you suggest that refers to a survey saying it has a shelf life of three or more years then a new precedent might be set. Until that happens I suggest the precedent appertaining to Dundee will apply until at least another set of circumstances prevail.

I understand what you are saying but all I am saying is that a precedent has been set under the Dundee scenario. In the absence of a council informing itself of demand then the Dundee precedent will prevail.

The date of the Survey and the letter of refusal are listed below. It clearly states the time frame as being two years five months.

That recommendation followed upon a comprehensive survey into taxi services in the city completed in May 2000.

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.

Best wishes

JD

We'll have to agree to disagree over this one John.

I can't really see how the judgement related to the shelf-life of independent surveys - to me all it did was underline that LAs in Scotland had to make some assessment of demand everytime it considered new applications for plates.

For example, even if the application had been three months after the survey, an assessment would still have been required, and I can't see anything to suggest that a full independent survey was required, just that an offical would have to do the assessing, but the court doesn't rule on how this might be carried out.

By the same token, if an assessment had been carried out in Dundee when the application under consideration was made, and despite the fact that a full independent survey had not been carried out, then there's no reason why, in view of the judgement, Dundee City Council couldn't have won the case, as far as I can see.

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I think the problem is how a court would view an interim survey done by LOs.

Are the LOs biased, are they competent?

If I was someone applying for a plate, I would much rather fight a LOs notes, than a full-blown SUD survey.

But I think the above problem is a Scottish one, down here the only evidence a court would except is a full SUD survey.

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IDFIMH

Yes, good point Sussex, but the court clearly side-stepped what the interim assessment might consist of, since it wasn't really relevant to the disposal of the case.

As for your last paragraph, the implication seems to be that the procedure is more onerous in England and Wales than in Scotland, whereas I would say the reverse seems to be the case.

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TDO, I was not suggesting the courts had made a decision on the shelf life of a survey. Only that the survey in question had been undertaken two years previous and the court had set a precedent in the time frame of the Dundee survey. It would follow that two years five months without any up to date evidence being obtained, was too long a time frame for this survey to be reliable. It just happens that the council survey was out of date by two years five months and that's the time frame they made their decision on.

I'm quite sure that if the council survey had only been three months old the court might have come to a different conclusion. However we can only rely on the evidence this court had in front of them, the evidence proved the survey was out of date by the two years five months so we can safely assume that the period of time in question, is too long. We shall have to wait and see what the future holds in respect of similar cases to this but until then we are left with the Dundee ruling.

If a case comes before the courts with a smaller time frame than Dundee, then we might see a new limit set. But until that happens I think we can safely say that under the present law two years five months has been accepted as being too long a time frame for a council to go without satisfying itself of any unmet demand.

Hypothetically any time frame could be deemed outdated but we are not dealing with hypothetics, we have to deal with the law as it is laid down and court has stated two years five months is too long.

Regards

JD

You must be making a very fine distinction between what I described as a survey's 'shelf-life' and saying that a 'time frame' of two years and five months is too long John!!

Surely to the extent that you claimed that the court ruled that the time frame of two years and five months was too long then that is a ruling on the 'shelf life' of a survey?

But as I said, I don't think the ruling concerned either a shelf-life or time frame at all, indeed surely if it had then the court might have been more specific about what it considered to be an appropriate time limit(!) for a survey?

But as I said, to me the judgement seems to be merely a ruling on the narrower grounds that the committee must consider information at the time of considering the applications. I don't think the time frame involved is relevant - it could be shortly after the survey, it could be the two years and five months in the Dundee case or it could be the five years (I think!) in the Coyle case, and I don't think the current case adds anything to Coyle, I think it just confirms it.

With regard to this particular point, the salient paragraph in the judgement seems to be no 9, which states:

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.

So I don't think the time was really relevant, it could have been any period of time and not just the two years and five months that happened to be the period that had elapsed since the last independent survey in Dundee. The point is that an assessment must be made when the applications are considered, and the court did not rule on any particular time frame, because the time elapsed was irrelevant.

Thus to that extent it might be argued that an independent survey has to be undertaken whenever applications for plates are made, but I don't think this is the case either. Para 9 says:

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".

Looking at the italicised passages in particular, it's clear that neither in Coyle nor the present case when considered by the sheriff, nor in the appeal disposal quoted, how the question of unmet demand should be considered was not a addressed - the salient point is that it should be addressed, but none of the three courts were willing to express a view on how this should be done, and the last half dozen words in particular make this clear. But what seems to be envisaged is that between the independent surveys the LA should make some kind of assessment to ensure that the number decided by the survey is still the appropriate one.

If you look at the thread on derestriction on the Fastblacks site then there's a discussion on how the unmet demand scenario is considered in Edinburgh - it seems that between the independent surveys the issue is kept under consideration by an official, which is presumably following the rule laid down in Coyle and confirmend in the Dundee cases.

However, at least one of the posters on the Fastblacks site has cast doubt upon the efficacy of the assessment made by the official, indeed he seems to consider it as something of a joke, and this does in fact echo the point made above by Sussex.

But I think that until someone challenges such procedures and/or the courts rule directly on what procedures should be employed to assess unmet demand between the independent surveys, all that we can deduce from the cases is that such an assessment should be done, not how it is to be done.

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I think it might be best to remind you of what I actually said in my first response to the opening post.

Although they didn't comment on the time scale of a survey it was refreshing to see that the judges made their decision on the fact that the Dundee survey was out of time within two years.

You will notice I said, "they didn't comment on the time scale of a survey" Meaning they had not defined how long the shelf life of a survey should be.

Now then, let's get back to reality. We are not talking "hypothetically" here, we are dealing with the facts presented in this case and I think we should concentrate on the facts of this case and not presume what might happen if the facts were different.

The facts are such that Dundee council when they refused these licenses had not properly advised itself of the level of unmet demand. That we can agree on.

The court had before it the Date the last survey was undertaken and the time the Applicant was refused. That time frame being two years five months. I think we can agree on that?

In this particular case, the court in all its wisdom could only rule on the fact that in the space of two years five months from the first survey being completed the council had not bothered to advise itself of any demand that might be forthcoming. We can agree on that?

Therefore the court ruled that because the council was not in a position to know the level of demand they couldn't legally refuse a license under these circumstances on the grounds of no unmet demand.

The time element just happens to be two years five months. I have already said that another court or the same court might offer a different judgement under the same circumstances if the time frame had been shorter. But we will not know what time frame a court will put on the validity of a survey until you get a case where a council refuses an applicant six to twelve months into the life of a new survey.

All that we know from this case, is that two years and five months, is too long a period for a council to go without informing itself of the level of demand for Taxis. Everything else is hypothetical and irrelevant.

It should also be noted that the council refused the licenses on the basis of the Survey undertaken in 2000. The Sheriff ruled this survey was outdated at the time the applicant was refused the license.

The person you mention on the Fast blacks forum who put forward the suggestion that Edinburgh council currently advises itself on a regular basis of the level of unmet demand, must be a brave man to suggest that such information would be counted as relevant in a court of law.

The judges stated in the Dundee case that they endorsed the view of the sheriff when he said he would not advise the council how to measure unmet demand, only that demand had to be measured.

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.

That doesn't necessarily mean that a council official can go out and form his own opinion as to the level of demand, only that the official or department in question must be in possession of such evidence when refusing an application. There is no suggestion that such information should be gathered by one council individual only that the official should "review" the information gathered. One might assume that any information gathered in respect of unmet demand might require an element of impartiality as suggested in the Yarmouth case, I think.

"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".

Further evidence above as to the validity of the two-year survey. The council argued that the survey was still current, the sheriff said no it wasn't.

In reflecting on what the person on fastblacks wrote in respect of a council informing itself of the level of unmet demand.

First I believe a court would expect and independent assessment based on a broad approach and not some documented evidence taken from someone's monthly diary or workbook. The onus is on the council to keep itself informed on the level of demand. How it does that is entirely up to them but I think you may find that a court might want independent evidence that demand does not exist, rather than take a council employees word that it does not exist.

Can we agree on that?

Regards

I haven't got time to reply to your post in depth just now John, but please find below an extract from an article on the Scottish Taxi Federation's website by the Dundee Taxi Association's solicitor in the case.

I think that lends support to my view that the essential point made in the cases is that the independent survey has no shelf-life at all, and that when each application is considered an assessment of the SUD situation must be made. Moreover, as was stated explicitly in the cases, no court has yet ruled on how this might be carried out, so I don't think I've proffered any view yet on how such an assessment might be carried out. (Please note that the article was written before the recent appeal decision, but I don't think the appeal did any more than endorse the sheriff.)

If I could be so bold as to suggest ( ) I think you (and Sussex to an extent) might be being influenced by your superior and extensive knowledge of the case law on the legislation in England and Wales, whereas of course the Scottish legal system is entirely separate.

Sussex sent me a hard copy of the Coyle case a couple of years ago (I don't think it's on the internet) and since then I've read the Dundee decision in the Sheriff Court and the recent appeal from that. Which is probably about the same amount as the English cases I've read. So perhaps my relative ignorance on the English case law allows me to read the Scottish cases in isolation, and to that extent more readily deduce the essential points decided therein.

I would say that in essence the Scottish courts put significantly less emphasis on the surveys, and view them as merely deriving a contemporaneous (to use the terminology employed) figure for the minimum number of taxis to ensure no SUD, and thereafter the situation must be reassessed when any new applications for plates are received, but how this should be done hasn't been considered by the courts at all. In essence I think that the Scottish case law on the subject is underdeveloped, particulary when compared to that in England and Wales.

It is clear from both the case of Coyle and the recent Dundee case that it is not sufficient for the licensing authority to commission a survey to assess the demand for taxi services and thereafter rely upon that survey to establish the demand for taxi services in its locality. The issue of demand requires to be reviewed on an ongoing basis with the licensing authority being in a position to satisfy itself on the current demand for taxi services on each occasion an application for the grant of a new licence comes before it. Failure to adopt such a system will inevitably lead to further successful legal challenges which would erode somewhat the protections afforded to the trade by Section 10(3) of the 1982 Act.

http://www.scottaxifed.org/200309/page5a.htm

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We are not a million miles apart on this. My reference to Surveys and shelf life was confined to Dundee and what was stated in that case. I don't know if the Scottish courts would find a survey, which was completed in March outdated by April. I also do not know what time frame if any the Scottish courts would deem acceptable for a survey to be classed as current?

I can see the point in your proposal that a council has to measure demand when presented with an application for a license but did the court actually say that? Was it not the case that the court implied a Council had to be satisfied there was no demand present when refusing a license. How a council did this is entirely up to them. One would assume that the information had to be recent and up to date but how recent I cannot say.

Correct me if I'm wrong but what is being inferred by yourself is that there will never be a time when a council can be satisfied of demand because every time an applicant applies for a license the council has to undertake a new assessment. So would it follow if a council had one application each month they would have to undertake 12 assessments in a year?

The Scottish courts haven't yet stated what would constitute a legal time frame, perhaps they never will. The Dundee case suggests two years five months is too long a time frame but we don't yet know how short is the time frame.

The Dundee case follows the classic guidelines of deferment, before you refuse a license make sure you have enough current up to date information to back up your opinion that there is no unmet demand. That is what Edinburgh is trying to do at his moment in time.

Dundee thought two years five months was an appropriate time frame, it is highly likely that their own legal department and the survey company told them so.

I would suggest from my own observations that a council has to give evidence of how it reached the conclusion that there was no unmet demand. The most widely accepted means for obtaining such evidence is by way of independent survey. It will then be up to the courts to determine if the standard of proof is acceptable.

Where an authority is not satisfied that there is no unmet demand it has an obligation to grant such a license because it has no discretion to refuse it on the grounds of unmet demand. Saving for deferment in which case it is not a refusal.

So from what I can see the only hair between us is that you believe the Dundee judgement defines that a council must measure demand every time an application is put forward. My position is that I won't make any judgement in that respect only to say that two years five months is too long a time frame to be sure that there is no unmet demand.

Regards

JD