JD wrote:
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 I don't know if the Scottish courts would find a survey, which was completed in March outdated by April.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?
I would say that the assessment has to be 'contemporaneus', and I susepct that to satisty that an assesssment would have to be made on at least a monthly basis to conincide with when decisions on applications are made.
At least that's how I would read the cases, and I think the one sentence from the above quote from the article by the solicitor involved in the case lends support to that view:
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.As I said, having read the three cases it seems that there's not so much emphasis put on the independent surveys, indeed an even more radical version of that view was contained in the legal Annexe to the OFT survey, which said:
[The Coyle and Dundee] cases suggest that licensing authorities in Scotland do not have to base their decisions on formal unmet demand surveys, but that it will be sufficient for the level of demand to be kept under review by a council official who has the information to judge
whether the demand has increased since the matter was last
considered.Leaving that aside, the interesting part seems to be the ongoing assessment and how that's carried out - the cases explicitly state that this has not been ruled upon yet.
However, apart from the Renfrewshire one that you considered above, I've come across a couple which perhaps demonstrate the divergent approaches that this uncertainty has engendered - it seems very much a case of LAs taking completely different approaches, and like the LAs in England who effectively do as they please and presumably hope they won't be challenged, this seems to be the approach of some of the Scottish LAs to the ongoing assessment aspect.
In Dundee, it seems that it was felt that it was effectively impossible to carry out an adequate assessment that would prevent any legal challenge, and this may well have been part of the reason for the de-restriction on the basis of WAVs there - in effect, the legal test was considered disproportionately stringent to adhere to. (extract below).
The assessment in Edinburgh (the one referred to on the Fastblacks forum as a 'till receipt') is an abomination, and is clearly intended merely to be seen to be doing something, but doesn't really do anything to assess SUD at all. One of the Fastblacks contributors seems to think that this would satisfy the Lord President's requirements (ie as per the Coyle case), but I would doubt this, particularly in view of the Dundee attitude. (see below).
As for the independence of any assessment, clearly Dundee and Edinburgh took polar opposite approaches to this. I don't think that the cases necessitate a totally independent assessment, and clearly Edinburgh agrees with this, although the actual substance of the report is rubbish.
Well put together TDO I'll offer my response hopefully within 48 hours. I hope the courts had in mind your contemporaneus time scale. It would certainly put councils in a very difficult position, especially if such evidence had to be independent. Interesting concept we are putting together here.