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Ranaldi v City Of Edinburgh Council [1999] ScotCS 161 (25 June 1999)
On 6 October 1995 the City of Edinburgh District Council, the predecessors of the respondents, to both of whom we will refer for convenience as "the respondents", refused an application by the appellant for a taxi operator's licence under section 10 of the Civic Government ( Scotland ) Act 1982. The appellant's appeal to the sheriff was dismissed on 18 December 1996. The appellant has appealed to this court.
The background to the appeal is briefly as follows. The appellant's father held a taxi operator's licence from about 1968 until his death on 12 April 1994. On 25 April 1994 the appellant applied for such a licence in her own name. On 23 September 1994 the application was refused by the respondents. The appellant appealed to the sheriff. On 5 September 1995 the sheriff, of consent, sustained the appeal and remitted the case to the respondents for further consideration of the appellant's application, with the recommendation that it should be granted, having regard to the special circumstances pertaining to her. This followed submissions to the sheriff, including that the respondents had fettered their discretion by rigidly adhering to their policy of limiting the number of licences.
The appellant's application came before the respondents' licensing committee once more on 6 October 1995. The Committee was addressed by her solicitor who provided them with information about the history of the application and the appellant's circumstances. The committee refused the application. Their decision was formally notified to the appellant by the respondents' Head of Legal Services by letter dated 11 October 1995. The appellant's solicitors by letter dated 18 October 1995 requested the statement of reasons for the Committee's decision under para. 17 of Schedule 1 to the 1982 Act. A statement of such reasons was supplied to them in a further letter from the Head of Legal Services dated 27 October 1995. In the last paragraph of that letter it was stated:
"After consideration the members of the Committee refused the application on the basis they there (sic) were not satisfied that the special circumstances narrated by Mr. Corbett (the appellant's solicitor) were sufficient to persuade them that they should depart from their normal policy of refusing applications for taxi licences on the basis that the Council are satisfied that there is no significant demand for the services of taxis in the District which is unmet".
In presenting the appeal Mr. I.G. Mitchell submitted that there had been a "procedural irregularity". He founded on the appellant's averments, according to which at the meeting of the Committee on 6 October 1995 and following some discussion
"A councillor then moved the Committee to refuse the application on the grounds that the present application was 'no different' from what he described as the 'joint application', which the solicitor (for the appellant) understood to be a reference to the previous application, and this was seconded by the chairman. The motion was carried nem con and the application refused, said refusal being notified in writing by the respondents' Head of Legal Services by letter dated 11 October 1995. Said letter disclosed no reason for the refusal".
Mr. Mitchell submitted that the fact that paragraph 17 provided for the licensing authority giving reasons in writing for their decision did not preclude them from giving their reasons in another way. He pointed out that in Midlothian District Council v. Kinnear, 9 December 1992, unreported, an Extra Division had held that a licence holder was entitled to assume that reasons given by a licensing authority along with written notice of their decision contained the whole reasons for that decision. In the present case the committee had, according to a proper reading of the appellant's averments, carried the motion proposed by the councillor, of which an integral part was that refusal was on the ground that the application was "no different" from a previous one. The sheriff had wrongly understood that the appellant was founding merely on a chance comment or statement by a member of the Committee. If that were so, the appellant would have no stateable case: see Piper v. Kyle & Carrick District Council 1988 S.L.T. 267. The Committee had adopted what the councillor had said as being the reason for their decision. No other member of the Committee dissented or proposed any amendment to his motion. It mattered not that the minute of the meeting merely recorded the decision to refuse. In the circumstances the appellant was entitled to take it that it was the operative reason for the respondents' decision. However, it did not accord with the reason given in the last paragraph of the letter dated 27 October 1975. Having given their reason at the time of their decision the respondents were not entitled to substitute any other reason. They had only one "bite at the cherry", and their decision had to be tested on the original reason which they had given. It was accepted that it would not be objectionable for a licensing authority to give further detail in regard to their original reason, but this did not arise in the present case. It followed that the reasons given in the letter dated 27 October 1995 fell to be ignored as inconsistent with the reason which had been given at the meeting.
At the same time Mr. Mitchell recognised that parties were not in agreement as to what happened at the meeting. According to the respondents' averments "the member of the Committee who moved that the application be refused stated to the hearing that nothing new had been heard to persuade him that the applicant's circumstances were special". Mr. Mitchell accepted that, if that was a correct account of what was said, he could not succeed. However, he invited the court to allow the appeal and to remit the case to the sheriff to hear evidence, so that he could reach a conclusion as to what happened at the meeting. If that was resolved in the appellant's favour, he would then seek to argue that the reason given at the meeting demonstrated that the decision to refuse her application was invalid.
Neither Mr. Mitchell nor Mr. Stuart, who appeared for the respondents, addressed the court at any significant length in regard to the implications for the respondents' decision if the reason for it was taken to be the ground for refusal which the councillor expressed at the meeting. They concentrated on the preliminary question as to whether it was relevant for the appellant to found as she does on what was said and done at the meeting.
The submissions made by Mr. Mitchell do not, in our view, raise a true question of procedural irregularity. He did not argue that the fact that, according to the appellant's averments, there were conflicting reasons as to why the respondents refused the application meant that their decision was vitiated. As we have already noted, his submissions were directed to restricting the reasons for the decision to what was said at the meeting. However, we do not accept his submission that the committee should be taken as having given the reason for their decision at the meeting. As Mr. Stuart pointed out, the fact that a member of the committee put forward his reason for moving the Committee to refuse the application does not entail that the chairman or the other members of the Committee must have had the same reason for voting in favour of his motion. So long as they were in favour of the application being refused, it was unnecessary for them to give any reason, let alone to propose an amendment to his motion. For these reasons we do not accept Mr. Mitchell's interpretation of what happened at the meeting, on which his submission depends.
We would add this. 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, or by the sheriff in connection with an appeal (para. 17(2) and (3)). 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 seems 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.
We would also point out that the submissions for the appellant were based on the comparatively narrow ground of objecting to the written reason in so far as it conflicted with what was alleged to be the stated basis of the successful motion for the refusal of the appellant's application. Mr. Mitchell made it clear that there was no suggestion in the present case of any bad faith in the presentation of the written reason for the respondents' decision. We would reserve our opinion as to the approach which should be adopted where it is alleged that there has been some impropriety, such as that the true reasons for a decision are other than those stated by the licensing authority. This does not arise in the present case, and accordingly it is unnecessary for us to express any view in regard to it.
The second and remaining ground of appeal which was submitted by Mr. Mitchell was that the letter dated 27 October 1995 did not contain adequate reasons for the respondents' refusal of the appellant's application. It was not in dispute that the respondents were entitled to have a policy of limiting the number of licences for the operation of taxis in their district. What they were not entitled to do in dealing with an application was to apply that policy without regard to the circumstances of the particular case. Accordingly the question for the Committee was whether the appellant had put before them special circumstances which justified a departure from that policy. The letter narrated that the appellant's solicitor had described the previous history of the application, and informed them that the appellant's father had held a taxi licence from 1968 until his death in April 1994, and that for ten years the appellant had conducted the business for her father. He expressed the view that there was a partnership at will between them. Two taxi drivers had been employed by the business. Their employment was continuing, and the business was still operating since the Committee had kept the deceased's licence in force during the course of the appeal. The solicitor emphasised that in granting the appellant's application the Committee would not be increasing the numbers of licences in operation, and that she was in effect applying to have her father's licence in her own name. The Cab Inspector confirmed that the respondents had been requested to grant the licence to a partnership of the deceased and the appellant. Legal advice had been given that such an application would have had to be considered as being for a new licence since it was not open for applicants to seek renewal of a licence in a name other than that of the holder. The letter went on to state that the solicitor was advised by the clerk to the Committee that they had taken advice on the effect of the sheriff's interlocutor and that the sheriff had not himself heard evidence as to special circumstances pertaining to the appellant. The Committee questioned the solicitor further as to the special circumstances and sought information as to when the deceased became unable to drive. They were informed that the applicant did not herself drive a taxi and that she had a job outwith the taxi trade. However, the solicitor emphasised that the deceased's widow relied on the income from the taxi business. After setting out these matters the letter concluded with the passage which we have quoted earlier in this opinion.
Mr. Mitchell referred to a number of decided cases for observations which had been made as to the sufficiency of reasons which is expected of a committee or administrative tribunal. However, he accepted that the adequacy of reasons depends on the particular circumstances of the case. He founded particularly on the passage in the opinion of Lord Allanbridge in Bass Inns & Taverns Limited v. Glasgow District Licensing Board 1995 S.C. 226, in which he said at page 230:
"In giving reasons for their decision, the respondents should demonstrate that not only have they heard and considered the applicant's arguments in support of making his application an exception to the policy but, where it is appropriate to do so having regard to the nature of the policy, also explain the reasons which had persuaded them not to grant his particular application after consideration of it".
On that basis Mr. Mitchell submitted that there was a need for the respondents to demonstrate that they had not simply adhered to their policy without regard to the circumstances, and accordingly there was a somewhat higher responsibility on them to set out with some particularisation the reasons why they had not been persuaded to depart from it. In the present case the last paragraph of the letter did not refer to any of the matters which the solicitor had put before the committee for their consideration. A particular point had been made of the argument that the granting of the appellant's application would not give rise to a net increase in the number of licences since her father's licence had been continued by the respondents for the time being under para. 12(4) of Schedule 2 to the 1982 Act. That argument called for a reason to be stated if it was to be rejected. The Committee could have had a reason for rejecting it, but none was stated. If they were to say that the circumstances founded on by the appellant's solicitor were insufficient to persuade them to depart from their policy, they required to give the basis for that conclusion.
What is adequate by way of reasons for a decision must depend on the nature and extent of what is in dispute. In the present case it is reasonably plain that the Committee were unimpressed with the submission made by the appellant's solicitor that she was in effect applying to have her father's licence in her own name. They proceeded on the basis that they required to consider the application as one for a new licence. Beyond that the effect of the various circumstances put before them by her solicitor was a matter of degree for the Committee to assess. Thus if they were not satisfied that those circumstances were sufficient to persuade them that they should depart from their normal policy, there is little which they could add to what is stated in the letter. There is no suggestion in the present case that what was said in the letter was otherwise than a genuine expression of their views. In these circumstances we are not persuaded that the reasons given in the letter of 27 October 1995 were inadequate.
Accordingly we will refuse the appeal and affirm the sheriff's interlocutor.
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Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin
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