Skull wrote:
Check the Edinburgh Evening News in the next few days.
The word from the Airport drivers who have applied for plates is that they are going to challenge the Council on the Jacobs Report not taking into account the increase in the Ph, and the Airport opening up after the year.
If the council deny the plates on Jacobs a Judicial Review will be underway.
Am I correct in saying that if everything goes down the route of a Judicial Review it is game over for the council retaining any sort of control of the situation? Edinburgh would be facing a Dublin situation.
Just a word of caution about judicial review.
There is a procedure to be followed here. These applicants to whom you refer have to first apply for a license, then their application has to be refused. They then have to appeal through the court process and I'm afraid in the case of Scotland that process starts in the Sheriff court.
If licenses are refused the council will no doubt cite the survey as justification for refusal. Until the correct procedure has been exhausted it is highly unlikely these applicants would be granted a judicial revue.
The reason I say this is because there is ample precedent for it not least in Merseyside Police v Calveley 1986. Glidewell LJ observed in that very case "where application is made for judicial review but an alternative remedy is available, an Applicant should normally be left to pursue that remedy. Judicial review in such a case should only be granted in exceptional circumstances."
If it does comes down to a judicial review there are a number of different grounds on which a decision might be challenged. It might be worth mentioning to the applicants that if they can't prove the survey is flawed in the appeal process they have practically no chance of convincing a judge at judicial review that the council decision is flawed.
A court will only interfere with an administrative decision if it can be shown that on reaching that decision they went beyond the powers given to them by Parliament.
An administrative action that goes beyond these powers is called ultra vires. There is a great deal of case law on the various reasons why a decision may be ultra vires. Some of these are summarised in the following paragraphs.
Irrelevant Considerations.
Probably the most important ultra vires ground of all is irrelevant considerations. If it can be shown that a government or administrative body, in reaching its conclusions, took into account factors that were not relevant to the matter, or failed to consider matters that were relevant, the court can intervene. In order to decide what is relevant it is necessary to compare the reasons given for the decision or action with those permitted by the Act.
Improper Purpose
Probably the second most common ultra vires ground is improper purpose. Often, the same factual situation will justify court action on the basis of both irrelevant consideration and improper purpose. Strictly speaking, the claim here is that the decision or action, although on its face proper under the law, is designed to achieve a purpose which is beyond the responsibilities of the government body.
Unreasonableness.
A much less readily available ground is to claim that a decision is so unreasonable that no reasonable body would have reached it. This is a difficult ground, because it admits initially that the decision was one that was permissible under the law. What the individual is contending is that it is so unreasonable an application of the law that it goes beyond the inferred limits of the power. Generally speaking, the courts are not inclined to replace their view of that which might be reasonable for that of an outside body, especially an elected body such as a local council. Proving a decision unreasonable in this case is not an option. The power to make such a decision is already written into Scottish law by virtue of the Civic Government Scotland act 1982.
Bad Faith.
To attack an administrative action on the grounds of bad faith it is necessary to show that corruption, bribery or similar malpractice affected the decision. I emphasise Malpractice because I doubt you the other two factors exist.
Uncertainty.
A ground which is rarely available for attacking an administrative action is that it was too uncertain to be meaningful.
No Evidence
A relatively recent development in the review of administrative action is that of "no evidence". The courts are more readily prepared now than they were previously to review decisions where the evidence does not appear reasonably capable of supporting the decision made.
Beyond Jurisdiction
A decision that affects the rights or interests of an individual can be challenged on the grounds that it is beyond the jurisdiction of the decision making body.
Error of Law
Normally, tribunals are free to make legal principles in the field in which they are concerned, but sometimes the law has been decided in other decisions. The tribunal must follow these established principles. This will not apply in this case.
It is sometimes possible to attack an administrative decision on the basis that it is obvious from the record of its proceedings or the reason for its decision that it misunderstood some established principle in law. This is known as an error of law on the face of the record.
My honest opinion is that on the face of it without knowing the actual basis of any legal challenge my initial thoughts would be that appeal by way of judicial review was bound to fail. However that’s only my opinion.
Regards
JD
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