Quote:
JUDGMENT OF
SHERIFF PRINCIPAL EDWARD F BOWEN QC
in the appeal
in the cause
THE CITY OF EDINBURGH COUNCIL
Pursuers and Appellants
against
DAWN SALTER1
Defender and Respondent
Act: Armstrong QC, instructed by The City of Edinburgh Council
Alt: no appearance
EDINBURGH, 24 MARCH 2006
The Sheriff Principal, having resumed consideration of the cause, refuses the appeal
and adheres to the Sheriffs interlocutor complained of dated 17 October 2005.
NOTE:
1. This is an appeal against an interlocutor pronounced on 17 October 2005
refusing an application by the City of Edinburgh Council brought under the
provisions of section 3(2) of the Civic Government (Scotland) Act 1982. Part
1 of the Act makes general provisions in relation to Licensing and Licensing
Authorities. Section 3(l) provides:
"For the purpose of the discharge of their functions under this part of
this Act, every Licensing Authority shall consider, within three months
of its having been made to them under paragraph 1 of schedule 1 of
this Act, each application so made, and subject to the following
provisions of this section, reach a final decision on it within six
months".
In terms of section 3(2) of the Act a Sheriff has a discretionary power to
extend the period of six months on a summary application being made to him
within that period.
2. In the present case the respondent submitted an application to the applicants
for a taxi licence on 22 March 2005. The application for an extension of time
was lodged 12 September 2005. It was dealt with summarily by the Sheriff at
its first calling on 17 October.
3. The first question which calls for determination is whether the appeal is
competent, the Sheriff having expressed the view that it is not. He observes
that: "The application to the Sheriff in terms of section 3 is a creature of the
Statute and there is no appeal from that decision within the Statute".
4. The starting point in an issue of this type is "the constitutional principle that
every judgment of an inferior court is subject to review, unless such review is
excluded expressly or by necessary implication": Harper v inspector of
Rutherlgen 1903 6F 23 per Lord Traynor at page 25. There is no question of
express exclusion of appeal from the disposal of applications made under
section 3(2) of the 1982 Act. The Sheriff appears to have considered that an
express right of appeal would be necessary to make this appeal competent. In
my view that was an error or approach. If he had expressed the view that the
effect of the provision of sub-section 4, whereby a licence is deemed to be
granted if not dealt with within the six months or any extended period
provided for, introduced a "finality" which implied that there was no right of
appeal, I would have been sympathetic. That was, in part, my own approach
to the time limited provisions of interim exclusion orders under section 76 of
the Children (Scotland) Act 1995 in Glasnow Citv Council v D H 2003 SCLR,
but it was an approach which was rejected by the First Division. It is only
proper to accept that the constitutional right of appeal will only be excluded by
implication in the clearest of circumstances. They do not exist here. Appeals
against decisions under section 3(3) of the 1982 Act have been regularly
entertained without question as to their competency: [edited by admin] District
Council v Payne 1998 SLT (Sh Ct) 2 1 ; Monklands Disrrict Council v McGhee
1995 SLT (Sh Ct) 52. In my view the present appeal is directed against a final
interlocutor and is competent by virtue of section 27 of the Sheriff Court
(Scotland) Act 1907.
5. I accordingly turn to the merits of the matter. I pause to observe that this
appeal was heard along with two other appeals which arise in identical
circumstances. The applicants were represented by senior counsel. The
respondents were not represented and indeed they had not sought to formally
oppose the application. In two instances they have indicated that this was for
financial reasons and it was not to be taken as an indication that they
consented to the application. Extensive written submissions were lodged on
behalf of this appellant and whilst I have taken these into account so far as I
consider it proper to do so it will be appreciated that in so far as relevant these
answers lack the immediate impact of a formal response to counsel's
submissions.
6. The Sheriffs reasons for refusing the application appear to fall under three
heads. First, he commented on the brevity of the proceedings before him and
the absence of any attempt to lead evidence on the applicants' part. He
commented that the applicants' agent "was approaching the matter as he
would with an ordinary action seeking decree in absence". Second, he
indicated that there were certain matters of which he expected to learn more.
Lastly, he was critical of the date on which the present application had been
made, observing that delay in making it had itself caused the need for a
lengthy extension of the six month period laid down by Parliament.
7. 1 am bound to say that I consider that the Sheriff was wrong to indicate
disapproval of the fact that the applicants' agent moved that the application be
granted at the first calling, relying only on the averments in the application.
This was an unopposed summary application. Even if it had been opposed it
could have been dealt with on the basis of ex purte submissions provided that
there was no factual dispute on matters of materiality. The present application
was not opposed, a factor which the Sheriff ought to have taken into account,
although it was a perfectly proper observation to say that the absence of
opposition did not automatically entitle the applicant to succeed. The Sheriff
ought in my view to have simply dealt with the application taking the
applicants' pro veritate. It does not of course follow that he was bound to
grant it, because it was necessary for him to be satisfied that the application
was soundly based in law and that there was proper material on which to base
the exercise of his discretion.
8. In point of fact as matters stood before the Sheriff there was very good reason
for not granting the application. Section 3(1) of the 1982 Act requires a
License Authority to consider an application for a licence within three months
and reach a final decision on it within six months. Only the six month period
is susceptible to extension under section 3(2). The application as presented to
the Sheriff made no mention of consideration being given to the licence
application within three months; indeed there are no averments of anything
having happened to it after it was lodged on 22 March. What is said is that a
new survey of demand for taxis was commenced on 22 March 2005, the last
official survey having been completed in January 2002. The new report, it is
averred, was put to a meeting of the Hire Car Licensing Consultation Group
on 2 September. Thereafter the applicants' averments indicate that following
a series of references between the Taxi and Private Hire Regulatory
Committee and the Full Council the most likely date for the application to be
dealt with, following the grant of an extension of the six month period, would
be 18 January 2006.
9. It is perhaps because of the lack of specific focus in the pleadings on the
history of this particular licence application that the Sheriff was led into
making a number of general comments, for example, about the absence of
averments or a sudden increase in demand for taxi licences in the course of
2005 and the reasons for that, which I consider to be irrelevant and immaterial
to the issues before him. I am therefore persuaded that there is merit in the
applicants' first ground of appeal, the thrust of which is that in disposing of the
application the Sheriff took irrelevant considerations into account. The second
and fourth grounds of appeal relate to those matters to which I have referred in
paragraph 7 above, and I consider that there is force in these also. I am less
convinced by the terms of the third ground of appeal and the argument
advanced in support of it. This was to the effect that before refusing the
application the Sheriff should have taken into account the effect of the
provisions of section lO(2) of the 1982 Act. These provisions prohibit a
Licensing Authority from granting a taxi licence unless they are satisfied that
the vehicle to which the licence is to relate is suitable in type, size and design
for use as a taxi and that there is in force an appropriate policy of insurance. It
was pointed out that the applicants averred that the respondent had not
provided details of the vehicle for which the licence was sought and indeed it
was likely that she had not purchased a taxi. It was contended, as I understood
the argument, that this provision conflicted with the "deemed grant"
provisions of section 3(4), and that the Sheriff should have taken into account
the practical implications of refusing the application. I am far from persuaded
that this is a relevant consideration for a Sheriff faced with an application
under section 3(2); the consequences of a Licensing Authority failing to reach
a final decision in respect of a licence application have been clearly spelled out
by Parliament. If the Authority seeks to have the relevant statutory period
extended it must advance positive reasons in support of the application, and
not found on the consequences of its own failure.
10. Whilst it is not clear to what extent the Sheriff was influenced by the irrelevant
considerations above referred to, or to the fact that the applicants led no
evidence and relied simply on the terms of the application, I am persuaded that
the errors in these respects are sufficient for me to take the view that I should
consider the application of new. The issue as to whether the licence
application was "considered" within three months from the date on which it
was made was not highlighted before the Sheriff, and he did not deal with it.
That issue appears to me to be fundamental. As I have indicated nothing is
said about it in the pleadings. Counsel for the applicants contended that they
had "considered" the application. He produced for the purposes of the appeal
proceedings an inventory of productions which showed that the licence
application had been registered, that it had been acknowledged by letter to the
applicant dated 5 April 2005, and that on the same date an application for a
report had been made to Lothian and Borders Police Taxi Examination Centre.
This was followed by a report from the police on 28 April 2005 which
indicated that the license applicant was not a licensed taxi driver and had no
convictions recorded against her. Counsel contended that the term "consider"
simply meant looking at the licence application and causing investigation to be
made into it.
Whilst there was a superficial attraction in the argument presented by counsel,
and I have not had the benefit of hearing competing argument, I am not
satisfied that this argument is sound. "Consideration" of a licence application
appears to me to involve more than merely registering it and setting in motion
the administrative machinery to deal with it. I consider it significant that
section 3(1) of the 1982 Act imposes a requirement to "consider" and
thereafter reach a "final decision". That appears to me to contemplate some
form of initial deliberation by the Licensing Authority within the first three
months. On the applicants' own averments their Regulatory Committee
meets every four to five weeks. There is no obvious reason why a licence
application could not be placed before it within three months of it being
lodged. One of the matters which the Committee would require to consider
would be whether there was sufficient information to deal with the application
at that stage or whether it was necessary to continue to a later date within the
six month period. If there was good reason for believing that the application
could not be dealt with within the time limit that may well be the point at
which it would be appropriate to instruct an application for an extension under
section 3(2).
12. In the present case the Sheriff was, I consider, rightly critical of the fact that
nothing appeared to have been done until the summary application was lodged
some ten days before the six month period was about to expire. If the matter
had been properly "considered" by the applicants within the three month
period the extension could have been sought much earlier. In these
circumstances I am not minded to allow this appeal.
aye well another one doon the pan for the c.e.c
do you get the feeling that this has more to do with ive got lotsa money and youve got none.
rather than we are right and you are wrong, looks that way to me
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