When this thread first started Mr Skull posted an outside link to an Edinburgh forum, I read the posts on that forum and straight away a particular point jumped out at me.
An anonymous retired police officer made the statement that the roads at Edinburgh Airport "are not public". A Mr Taylor said they were public, he made the point it was Airport byelaws that enforced the act of plying for hire.
In the early nineties I did extensive research on what constitutes a public road on Private land, I subjected myself to countless hours of research and I became quite familiar with the subject. Time does dim ones memory but not so dim as to know the difference between a public and private road on private land.
I have never done any research into Edinburgh Airport but I thought this situation warranted it.
I came across a case from 1992 concerning a chap named Fulton it would appear to be the only case of its kind prosecuted by Edinburgh Airport under Airport byelaws for the offence of illegally plying hire that is reported. I thought most drivers in Edinburgh would know this case if they were around at that particular time? That is why I asked Mr Cabforce if he knew of Mr Fulton.
For those of our colleagues in Edinburgh that have not read this case I am going to post it to show them that even though the Airport roads are public, it was a bylaw that convicted Mr Fulton.
Those of us in the rest of the UK should be mindful of the bylaws that Airports and Railways have in place and how they may effect the way we ply for hire?
Mr Fulton was convicted under "Scottish Airports Bylaws" 1986, bylaw 5 (14).
Perhaps someone might wish to inform the retired Anonymous police officer from Edinburgh Airport that he is perhaps mistaken in his interpretation of the roads at Edinburgh Airport.
Here is the Case.
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Fulton v. Lees
High Court of Justiciary
HCJ Appeal
The Lord Justice Clerk (Ross), Lords Morison and Grieve
29 September 1992
Justiciary-Statutory offence-Byelaws-Offering for hire without permission--Power to make byelaws not covering regulation of vehicular traffic on roads to which road traffic enactments applied--Accused taxi driver picking up fare on road at airport terminal building--Road traffic enactments applying to road--Whether byelaw ultra vires--Airports Act 1986 (c 31), s 63 (2) (d)--Scottish Airports Byelaws 1986, byelaw 5 (14).
Section 63 (1) of the Airports Act 1986 provides that an airport operator may make byelaws for regulating the use and operation of the airport and the conduct of all persons within the airport, and subs (2) (d) provides in particular that any such byelaws may include byelaws for regulating vehicular traffic anywhere within the airport except on roads to which the road traffic enactments apply. Byelaw 5 (14) of the Scottish Airports Byelaws 1986 provides that no person shall sell or distribute anything, offer anything for sale or hire or make any offer of services unless the operator's permission has first been obtained.
An accused person, who was a taxi driver, was charged with a contravention of byelaw 5 (14) by picking up a fare at Edinburgh airport terminal building. He objected to the competency of the charge on the ground that the byelaw was ultra vires s 63 (2) (d) of the 1986 Act as the place where he had picked up the fare was a road to which the road traffic enactments applied. The sheriff repelled the objection after trial and convicted the accused, who appealed and argued further that the road was not part of the airport which was limited to the aerodrome. There was a finding to the effect that the proprietors of the airport also owned the road in question.
Held:
(1) that the word "airport" included the landing ground, the terminal building and the curtilage, particularly as the operators of the airport were the proprietors of the land on which the airport was situated including the road (pp 929L-930A); (2) that s 63 (2) (d) did not extend to the use of vehicles for purposes which could not be regarded as being in the context of regulating vehicular traffic and, accordingly, as byelaw 5 (14) was not so concerned, it was apt to cover what the accused did (pp 930J-931B); and appeal refused.
Dictum of Lord Denning MR in Cinnamond v British Airports Authority [1980] 1 WLR 582 at p 589, applied.
Summary complaintDerek Fulton was charged at the instance of Robert F Lees, procurator fiscal, Edinburgh, on a summary complaint which contained the following charge: "on 30 January 1990 at Edinburgh airport, Jubilee Road, District of Edinburgh, you did offer for hire a taxi without the permission of the British Airports Authority and without other lawful authority or excuse: contrary to the Scottish Airports Byelaws 1986, s 5 (14) and the Airports Act 1986, s 64". The accused objected to the competency of the charge prior to pleading not guilty and proceeding to trial. After trial the sheriff (I A Poole) repelled the plea to competency and convicted the accused.
The accused appealed to the High Court against the decision of the sheriff.
Findings in factThe sheriff found the following facts to be admitted or proved, inter alia:
(1) The appellant is a taxi driver and holds a licence from Edinburgh District Council as licensing authority to operate a taxi within the District of Edinburgh area. (2) The appellant's taxi is one of the distinctive Edinburgh black hackney "London cab" style taxis. (3) At 9.30 am on 30 January 1990, the appellant drove a customer to Edinburgh airport and discharged him in Jubilee Road outside the terminal buildings.
(4) Having paid off his fare, the appellant's taxi's "For Hire" sign was illuminated. (5) Some yards ahead of the appellant were waiting a line of taxis of the saloon type of taxi. (6) The taxi at the head of that queue was driven by a Mr Little and the taxi immediately behind was driven by Mr Niall Brown. (7) Both Mr Little and Mr Brown were licensed by Edinburgh District Council as licensing authority to operate their taxis in and out of Edinburgh airport. (8 Edinburgh District Council has divided the district of Edinburgh for taxi licensing purposes into two areas, namely Edinburgh airport and the rest of Edinburgh District.
(9) Mr Little and Mr Brown have permission from Edinburgh Airport Ltd to ply their taxis for hire out of Edinburgh airport and to wait in an airport taxi stance in Jubilee Road outside the terminal buildings there. (10) For that permission each pays annually <<PoundsSterling>>875.00 plus VAT to Edinburgh Airport Ltd. (11) The appellant had no such permission. (12) Edinburgh Airport Ltd are the heritable proprietors of the lands on which Edinburgh airport is situated including Jubilee Road....(14) On 30 January 1990, a Mr Powell, an English businessman, flew up on an Aberdeen Airways flight from East Midlands airport, England.
He required to transact business in Kirkcaldy. (15) Mr Powell approached the self drive hire car companies desks at Edinburgh airport in order to hire a car and was quoted hire terms of PoundsSterling 93.00 which he considered excessive. (16) Mr Powell then went out of the terminal buildings and approached a taxi driver at the head of the queue who quoted a fare of PoundsSterling 52.00 for Kirkcaldy.
Mr Powell considered that fare to be excessive. He approached a second driver further down the queue who quoted a fare of Pounds Sterling 37.00 which Mr Powell considered excessive. (17) Mr Powell then noticed the appellant and his black hackney cab discharging a fare some yards behind the airport taxi rank queue in Jubilee Road. (18 Mr Powell approached the appellant and inquired the fare to Kirkcaldy. (19) The appellant consulted a printed list of charges and stated that it would be Pounds Sterling 25.00.
(20) That fare was similar to the fare which drivers of airport taxis on a metered journey to Kirkcaldy should charge. (21) Mr Powell agreed to that fare and entered the appellant's taxi. (29) On 30 January 1990, the appellant was cautioned and charged that he had offered his taxi for hire without the permission of British Airports Authority and without other lawful authority or excuse contrary to the Scottish Airports Byelaws 1986, s 5 (14) and the Airports Act 1986, s 64. (30) On 30 January 1990 the appellant offered his taxi for hire at Edinburgh airport without the permission of Edinburgh Airport Ltd.
Statutory provisionsThe Airports Act 1986 provides:
"63.
(1) Where an airport is either (a) designated for the purposes of this section by an order made by the Secretary of State, or (b) managed by the Secretary of State, the airport operator (whether the Secretary of State or some other person) may make byelaws for regulating the use and operation of the airport and the conduct of all persons while within the airport.
"(2) Any such byelaws may, in particular, include byelaws--... (d) for regulating vehicular traffic anywhere within the airport, except on roads within the airport to which the road traffic enactments apply, and in particular (with that exception) for imposing speed limits on vehicles within the airport and for restricting or regulating the parking of vehicles or their use for any purpose or in any manner specified in the byelaws;...
"(3) In paragraph (d) of subsection (2) 'the road traffic enactments'means the enactments (whether passed before or after this Act) relating to road traffic, including the lighting and parking of vehicles, and any order or other instrument having effect by virtue of any such enactment."
The Scottish Airports Byelaws 1986 provide:
"5. The following acts are prohibited unless the permission of the Authority has first been obtained or unless the act is performed by a person acting with lawful authority or excuse in circumstances in which the obtaining of permission would be likely to hinder that person in so acting: ... (14) No person shall sell or distribute anything, offer anything for sale or hire or make any offer of services.
"8.
(1) No person shall cause or permit a taxi to ply for hire or load passengers other than at an authorised stance provided that it shall not be an offence to load passengers in a public car park or at a distance of more than half a mile from the nearest of such authorised stances or, with the consent of a constable or the Authority, at any distance from such authorised stances.
"(9) Taxi drivers shall not obstruct the road, footpath or buildings or cause annoyance or disturbance to persons in the vicinity."
Case referred to
Cinnamond v British Airports Authority [1980] 1 WLR 582; [1980] 2 All ER 368; [1979] RTR 331.
Appeal. The sheriff posed the following question for the opinion of the High Court:
On the foregoing facts admitted or proved was I entitled to find the appellant guilty?
The appeal was argued before the High Court on 9 July 1992.
On 29 September 1992 the court answered the question in the affirmative and refused the appeal.
The following opinion of the court was delivered by the Lord Justice Clerk
(Ross):
OPINION OF THE COURT.
On 11 April 1991, the appellant appeared in Edinburgh sheriff court in answer to a complaint which libelled a contravention of Scottish Airports Byelaws 1986, s 5 (14) and the Airports Act 1986, s 64. The complaint libelled: [his Lordship quoted the charge set out supra, and continued:]
A challenge to the competency of the complaint was made on behalf of the appellant who adhered to his plea of not guilty.
It was agreed by the appellant and the respondent that it would be appropriate that evidence should be led first by the respondent, and that thereafter legal argument could be heard. In the event evidence was led for the respondent and further evidence was led for the appellant. The sheriff then heard submissions on behalf of the appellant and the respondent including submissions on the plea to competency. The sheriff reserved judgment until 22 April 1991 when she found the appellant guilty and admonished him. Against his conviction the appellant has now appealed by way of stated case.
At a previous diet, when the appeal called before the court, counsel intimated that he had five principal submissions to make. It was however conceded by counsel that with one exception his submissions were not covered by the matters sought to be brought under review in the application for the stated case.
Counsel was unable to show cause as to why the appellant should be allowed to found any aspect of his appeal on a matter not contained in the application for a stated case, and the court accordingly intimated that it was not prepared to hear argument on the appellant's behalf in respect of four of his five submissions. The appeal was continued to enable counsel to take instructions.
As a result of that decision of the court the only submission of the appellant which was covered by his application for a stated case was a submission that on a proper construction of the byelaws no offence under the byelaws was shown to have been committed on the facts of the case. Before the sheriff the submission had been that a prosecution in terms of byelaw 8 (1) of the said byelaws would have been incompetent as ultra vires in respect that the byelaw enacted by that section went beyond the enabling powers in the principal Act of Parliament and was also repugnant to the general law.
At the hearing of the appeal on 9 July 1992, counsel for the appellant drew attention to the relevant findings in fact. The findings revealed that a Mr Powell on 30 January 1990 arrived at Edinburgh airport. He required to transact business in Kirkcaldy and approached two taxi drivers in a queue of taxis seeking the quotation of a fare for the journey to Kirkcaldy. He regarded the quotations as excessive. He then noticed the appellant in his black hackney cab discharging a fare some yards behind the airport taxi rank queue in Jubilee Road. He approached the appellant and inquired the fare to Kirkcaldy. The appellant stated that the fare would be Pounds Sterling 25, and Mr Powell agreed to that fare and entered the taxi.
Finding 29 is in the following terms: [his Lordship quoted its terms and continued:]
Counsel drew attention to the Scottish Airports Byelaws 1986, and pointed out that byelaw 1 dealt with interpretation. It was provided therein inter alia that "the airport" means the "aerodrome known as Edinburgh Airport". Counsel pointed out that in the Oxford Dictionary aerodrome is defined as "A course for the use of flying machines; a tract of level ground from which aeroplanes or airships can start".
He accordingly submitted that Edinburgh airport did not include the roadway on which the appellant had been with his taxi at the airport. He submitted that it was clear that the roadway in question was outwith the curtilage of the aerodrome. We are satisfied that that contention is unsound. Section 63 (1) of the Airports Act 1986 empowers the airport operator to make byelaws for regulating the use and operation of the airport and the conduct of all persons while within the airport.
"The airport" must, we think, include the landing ground, the terminal building and the curtilage. In any event finding 12 is in the following terms: "Edinburgh Airport Ltd are the heritable proprietors of the lands on which Edinburgh airport is situated including Jubilee Road".
It is, we think, clear from that finding that Jubilee Road is part of Edinburgh airport, and that it is incorrect to suggest that the roadway is outwith the curtilage of the airport.
Counsel next referred to byelaw 8 (1). That byelaw provides as follows: [his Lordship quoted the terms of byelaw 8 (1) and continued:]
Counsel stated that although the appellant had not been charged with any contravention of byelaw 8 (1) he could have been charged with such an offence. He also drew attention to the provisions of byelaw 8 (9) which is in the following terms: [his Lordship quoted its terms and continued:]
Counsel maintained that byelaws such as 8 (1) and 8 (9) were ultra vires. This was because of the provisions of s 63 of the Airports Act 1986. Section 63 (1) empowers the airport operator to make byelaws for regulating the use and operation of the airport and the conduct of all persons while within the airport. In s 63 (2)it is provided inter alia as follows: [his Lordship quoted the terms of s 63 (2) set out supra and then s 63 (3), and continued:]
Counsel submitted that the effect of s 63 (2) (d) was that the British Airports Authority could not make byelaws for regulating traffic on roads to which the road traffic enactments applied. He submitted that Jubilee Road was plainly a road to which the road traffic enactments applied and that accordingly byelaws such as byelaw 8 (1) and 8 (9) were beyond the powers of British Airports Authority.
The Crown's answer to this submission was, of course, that the appellant was not being charged with contravention of byelaw 8 (1) or 8 (9). What the appellant was being charged with contravening was byelaw 5 (14). Byelaw 5 deals with "acts for which permission is required". It provides as follows: [his Lordship quoted the terms of byelaw 5 set out supra and continued:]
As we understand it, however, counsel's submission was that on the findings the appellant had offered his taxi for hire on Jubilee Road and had thereby offered his services to Mr Powell.
That being so the submission appeared to be that the making of byelaw 5 (14) was struck at by the provisions of s 63 (2) (d) which provided in effect that byelaws could not be made for the purpose of regulating the use of vehicles for any purpose on roads within the airport to which the road traffic enactments applied.
The advocate depute contended that the true effect of s 63 (2) (d) was that on a road within the airport to which the road traffic enactments applied, the airport authority could not make byelaws which changed the road traffic enactments. He stressed however that the charge in this case libelled a contravention of byelaw 5 (14), and he contended that that byelaw dealt with the offering for hire of articles, and that the fact that in this case the article was a vehicle was irrelevant.
He founded on the findings which made it clear that at the material time the appellant was offering to hire his taxi to Mr Powell and was offering his services to Mr Powell. He submitted under reference to s 63 (2) (d) that the provisions "restricting or regulating the parking of vehicles or their use for any purpose" were confined to restricting or regulating the use of vehicles in the context of the regulation of vehicular traffic; these provisions had no application to the use of vehicles except insofar as such use could be regarded as a facet of the regulating of vehicular traffic. So far as the use of vehicles for any other purpose was concerned, the provisions of s 63 (2) (d) had no application.
We have come to the conclusion that in this respect the advocate depute's submissions are sound. Although we agree that the effect of s 63 (2) (d) is that the airport operator cannot make byelaws for regulating traffic on roads to which the road traffic enactments apply, this does not mean that byelaw 5 (14) is in any way ultra vires. The sheriff recognised that Jubilee Road was a road to which the road traffic enactments applied, as evidence to that effect had been given by Inspector Elgin.
She realised however that if the appellant's arguments were sound then as regards hackney 4carriages in Jubilee Road, provisions such as s 63 (2) (e) and (f)would be inapplicable. She concluded that that could not have been the intention of Parliament.
In our opinion, the sheriff was well founded in accepting that s 63 (2) (d) did not cover the use of vehicles for all purposes, but was concerned solely with the use of vehicles so far as regulating vehicular traffic was concerned. In the course of her note the sheriff referred to Cinnamond v British Airports Authority. In that case at [1980] 1 WLR, p 589 Lord Denning MR said of byelaws made by the British Airports Authority:
"It seems to me that the approach nowadays should be different in regard to modern byelaws. If the byelaw is of such a nature that something of this kind is necessary or desirable for the operation of the airport, then the courts should endeavour to interpret the byelaw so as to render it valid rather than invalid. The Latin maxim is Ut res magis valeat quam pereat, it is better for a thing to have effect than to be made void.
If it is drafted in words which on a strict interpretation may be said to be too wide, or too uncertain, or to be unreasonable, then the court so long as the words permit it should discard the strict interpretation and interpret them with any reasonable implications or qualifications which may be necessary so as to produce a just and proper result".
We agree that that is the correct approach, and adopting that approach, we agree with the sheriff that one should avoid an interpretation which would have the effect of making a number of safety provisions in s 63 (2) inapplicable. It is, in our opinion, preferable and indeed a sound construction to read s 63 (2) (d) as not extending to the use of vehicles for purposes which cannot be regarded as being in the context of regulating vehicular traffic.
Accordingly, so far as roads within the airport to which the road traffic enactments apply are concerned, there is nothing to prevent the airport operator from making byelaws regulating the use of vehicles for any purposes which are not properly concerned with regulating vehicular traffic.
In our opinion byelaw 5 (14) is not concerned with regulating vehicle traffic at all. It is expressed in general terms, and the words are apt to cover the present situation where the findings show that the appellant offered his taxi for hire to Mr Powell and offered his services to Mr Powell. The provision in byelaw 5 (14) to the effect that such offers were prohibited unless permission from the British Airports Authority had first been obtained, are not properly to be regarded as provisions regulating vehicular traffic.
In other words, we are satisfied that the prohibition upon which the Crown rely in relation to the charge against the appellant has nothing to do with regulating vehicular traffic on Jubilee Road. Byelaw 5 (14) deals with selling, distributing, offering for sale or hire, or offering services.
The language used is clearly wide enough to cover motor vehicles, but where motor vehicles are concerned the prohibition cannot be regarded as being a provision for regulating vehicular traffic. It is also of significance that the Road Traffic Acts do not deal with the licensing and regulation of taxis, regarding which provisions are to be found in the Civic Government (Scotland) Act 1982.
For the foregoing reasons we are satisfied that the sheriff arrived at a correct decision in this case. She was well founded in rejecting the plea to competency, and in convicting the appellant of the charge. On a proper construction of the byelaws, an offence under the byelaws was, on the facts found proved, shown to have been committed. We shall accordingly answer the one question in the case in the affirmative, and the appeal is therefore refused.
Representation
Counsel for Appellant, Bell, QC; Solicitors, Mackay & Norwell, WS--Counsel for Respondent, Macdonald, QC, A D; Solicitor, J D Lowe, Crown Agent.
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