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The following judgement was handed down by Sheriff John Horsburgh on 16th December 2005. The judge has laid out in plain english what is expected of an administrative body when considering an application for a taxi operators license, under the civic Government Scotland act 1982.
The application by City of Edinburgh council for an extension of time beyond the six month statutory period allowed by law was refused. The reason for the refusal is because councillors intentionaly chose to sit on their hands and disregard the law and with it the expectation these applicants had of having their applications determined under due process of law.
The courts in both this case and the recent Liddle case, have taken a dim view of councillors who intentionally disregarded the law in order to persue their own policies at the expence of natural justice.
These two judgements cast grave doubts on the reasoning behind the judgement of Sheriff Mackie in the case of 3maxblack.
Judgement of Sheriff John Horsburgh
in the cause
The City of Edinburgh Council Applicants
Against
M & V Taxis Limited Respondents
Act: Ian N J Artis, Advocate, solicitor to Edinburgh Council
Alt: Fiona M Munday, Solicitor Advocate Bonar Mckenzie WS
Edinburgh 16th December 2005.
The Sheriff having resumed consideration of the cause, refuses the crave of the application, deems the respondents application for a Taxi license to have been granted on 1st October 2005, and directs the City of Edinburgh Council to make out and deliver the said license to the respondent forthwith, all in terms of section 3 (4) and (5) of the Civic Government Scotland act 1982, reserves in the meantime, all questions of expenses.
Note.
In this case the council seek an extension of the six month period for determination of the applicants taxi license application under section 3 (2) of the act. Rather misleadingly in the print of that section in the Parliament House book the period is stated as 12 months. That refers only to the licensing of housing in multiple occupation and not to taxi operators licenses for example. There was no real factual dispute and both sides were agreed that whether the application should be granted could be decided on the basis of legal argument.
The history and background so far as relevant to the submissions advanced is that on 22nd March 2005 the council commissioned a survey from transport consultants on the public demand for taxis. The respondents lodged an application for a Taxi license on the 1st April. The consultant's report became available on the 29th July. It was considered at a specially convened meeting at the councils hire car licensing consultation group on 2nd September. It referred the report to its Taxi and private hire regulatory committee, which on 7th September referred the report to a meeting of the full council on 15th September. It made a policy decision about granting further Taxi licenses. The councils regulatory committee was next due to meet on the 5th October when it would determine the respondent's application. In terms of section 3.1 that had to be done by the 1st October. On the 20th September the council lodged this application under section 3 (2) to extend the period for the respondents application until 8th February 2006. If it is granted the council anticipate that the next meeting of the regulatory committee at which the application would be considered is the 18th January 2006. If a license was provisionally granted then that would be subject to the cab inspector's approval of the vehicle the respondents would then have to acquire. Final determination of the application would take a further three weeks.
In support of their application the counsel for the council referred to sections 3 and 10 of the act and to paras 4 and 5 of schedule 1. An extension could be granted by the court for good reason, which might, be where the council through no fault of theirs had not been able to complete investigations or in cases of inadvertence or negligence bad faith excepted. There were three reasons for justifying granting this extension. Firstly, to be properly appraised of relevant information the consultant's report was necessary. While the regulatory committee and the consultation group had considered and accepted its conclusions, the full council had to take a policy decision on it. This had been done on 15th September, but the regulatory committee, which deals with the individual licensing applications then, had to consider this application on its merits. There had been no time to do that before the 1st October. It next sits on the 21st December, then 18th January and 15th February 2006. Secondly there had been no time to consider the applications fitness and to inspect and approve the vehicle. The application had not provided details of the vehicle and insurance, as applicants do not invest in new vehicles until there is a provisional grant of a license in prospect. Thirdly a deemed grant would be against the public interest, since it would allow an unapproved vehicle to operate as a Taxi and could deny objectors their usual recourse.
In reply the solicitor for the respondents said the court should not approved the councils application. In brief she contended that the council are obliged to consider a license application within three months and reach a decision in six months. They had done neither. They had not considered the application up to the time when the consultant's report became available on 29th July. It is not said that it would have been difficult for them to have decided it, within the two month period after that. The full council considered this report only on the 15th September, when it made a policy decision. The respondent's application could have then been considered before the 1st October. Instead this application was presented to the court when the regulatory committee would be meeting on the 5th October, too late to consider the respondents application timeously. For reasons of administrative convenience had not decided to make a decision on the application, but had chosen rather than deal with it, to seek more time from the court. They could have processed the whole matter earlier, and decided it within six months. The councils third reason was not sound Parliament has permitted a deemed grant.
Reference was made to both sides of Coyle V Glasgow City council 1997 SC 370 and to City of Edinburgh Council V 3maxblack 27th July 2005 Edinburgh Sheriff court unreported but it was accepted that each case had to be decided o its own facts.
The first and second grounds of the councils application fall to be determined on a consideration of what happened during the six months period. The third ground does not depend on these circumstances. With each ground the decision to be made involves striking an equitable balance between the right of the respondents to a speedy decision on the application they had made and the administrative needs of the council. In my opinion none of these three grounds justifies the extension they now seek. I reached that conclusion for the following reasons.
I deal with the first and second grounds. Like all Gaul the six month period is divided into three parts. The first ran when the respondents lodged their taxi license application until 29th July. The second ran from receipt of the consultant's report on 29th July to 15th September, when the full council made a policy decision on that. The third is the period from then until the 1st October when the six months expired.
As for the first period the council were in terms of section 3 (1) obliged to consider the application within three months of it having been made to them. They had until the 1st July to do so. Nothing was said at the bar or in the pleadings to indicate that they had done anything of that sort during this time. Indeed their pleadings are not directed towards this particular matter. They narrate the background to the decision to commission the consultants report and its commissioning. That relates to circumstances which pre dates the lodging of the respondent's application. Similarly they explain why there had been a gap of three years between the previous survey and this one. These matters are not relevant to the matters, which arise in this case. There is nothing to indicate the council did anything to carry their duty to consider the application within three months of its receipt. There is nothing to indicate that they took any steps to investigate those matters, other than the physical inspection of the Taxi, which require to be looked into before the grant of a license is made, such as the suitability of the license holders. They give no adequate reason for doing so. I was unpersuaded by the distinction sought to be made by counsel between taking the application under consideration and taking steps to dispose of it. The fact that the consultants report was still awaited by then did not relive the council of its obligation to full fill this statutory duty. This was a failure on their part. They should and could have attended to these matters before the council meeting at which the policy decision was taken.
As to the second period, there is no explanation in the application, or given in argument, as to why the council allowed seven weeks (bar one day) to elapse from the date when the consultants report was available before they took the policy decision on the 15th September. The earlier meetings on the 2nd and 7th September involved bodies not authorised to take such a decision. That was more than 26% of the time within which they were obliged to deal with the respondent's application. It was not said that there was no earlier scheduled council meeting or that one could not be arranged for an earlier date. Indeed the background to this case indicates that there is a capacity to convene meetings specially, and to put items on agenda at short notice. It appears the council simply chose to ignore the six months time limit. That was a failure on their part to carry out their statutory duties. The period before 15th September cannot reasonably be regarded simply as "dead time" so far as the running of the six month period is concerned.
As to the third period in the two weeks still to run before the 1st October the council took no steps to consider the respondents application. Instead they decided to seek a time extension. I was not persuaded that the whole process could not have been completed in the time available. Had the consideration of the application been progressed at an earlier stage, as it ought to have been, there is every prospect that it could have been.
Singly or in combination what happened during these periods is insufficient to justify the grant of an extension of the six month period in my opinion. The respondents were by law entitled to a decision within that time, and the councils administrative system should have provided the means of achieving that. Its inflexibility ought not to be permitted to deny the respondents right. That disposes of the first two grounds on which the application is brought by the council.
The third ground is that a deemed grant would be against the public interest and prejudice objectors interest. In my view that point is devoid of merit for three reasons. First as the solicitor for the respondents submitted, Parliament has provided that when a licensing authority has failed to reach a decision within the time permitted, the application is deemed to be granted. That is the consequence if the council does not carry out its duty. Second standing the undertaking volunteered on behalf of the respondents, that if a deemed grant were made, they provide a vehicle that is compliant with the well known and accepted inspection standards, I considered that the safety of the Taxi using public would not be compromised. In any case any abuse in the operation of the license, would be curtailed by its shorter than normal currency. Third if the council does not carry out its duty Parliament has preferred the applicants right to objectors interests. In any event, normally objections must be made within 21 days of newspaper publication of the application in terms of para 1 (7) Schedule 1, although late objections may be entertained. The council do not state if such publication had been made, and if any objections had been received. In the absence of such information their point is merely speculative.
In these circumstances the provisions of section 3 (4) and (5) of the act apply. A license to remain in force for one year, is deemed to have been granted on 1st October 2005 and must be issued by the council to the respondents.
I was not addressed on expenses and these I have reserved meanwhile.
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