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1982 act, scotland.
Pre section 16 refusal of operator license. Fettering ones discretion. Rigid Policy a fetter on the discretion to be impartial when considering a license application. 1985 act should take precedent over rigid policy if granting a license has no adverse effect on control of same. License application to be determind when it falls due and the present circumstances to be considered only and not any previous historical measurment or rigid policy. Decision based on incorrect facts a determining factor in being granted a license.
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AITKEN v CITY OF GLASGOW DISTRICT COUNCIL
SHERIFF COURT, GLASGOW
1988 SCLR 287
17 February 1988
CATCHWORDS: Licensing -- Taxi licences -- Whether 'policy' decision to limit number of licences taken in advance of applications being considered an error in law -- Whether failure to give applicant opportunity to make representations in regard to letter of objection to 'policy' an error in law -- Natural justice -- Incorrect material facts -- Necessity of averring that incorrect material fact would have affected authority's decision -- Civic Government (Scotland) Act 1982 (c 45), s 10(3), Sched 1, paras 4(3), 5(3)
HEADNOTE: Section 10(3) of the Civic Government (Scotland) Act 1982 provides as follows:
'Without prejudice to paragraph 5 of Schedule 1 to this Act, a licensing authority shall refuse an application to grant a taxi licence if, in their opinion, granting it would have an adverse effect on the general availability to the public in their area of the services of taxis or the cost of providing these services.'
Paragraph 4(3) of Schedule 1 to the Act provides inter alia as follows:
'A licensing authority shall not reach a final decision upon such an application [for the grant or renewal of a licence] --
(a) in relation to which a relevant objection or representation . . . has been made to them or in relation to which they intend to take into account any result of their inquiries . . .; and
(b) in respect of which they have not . . . given the applicant and any person who has made such objection or representation an opportunity to be heard;
unless they have given the applicant an opportunity to notify them in writing of his views on such objection or representation or as the case may be, result within such reasonable period . . . as they may specify.'
Paragraph 5(3) of Schedule 1 to the Act provides inter alia as follows:
'A licensing authority shall refuse an application to grant or renew a licence if, in their opinion -- . . .
(d) there is other good reason for refusing the application; and otherwise shall grant the application.'
The respondents decided to limit the number of taxi-operators' licences in their area to 1,428. The Glasgow Hackney Carriage Trade Association objected to the decision. The respondents granted licences to all those who had previously held operators' licences and compiled a list of the remaining applicants in chronological order according to the earliest date from which each applicant had held a licence. The respondents then granted twenty-three of the applications on the list to make the number up to 1,428. The appellant, who was on the list, had his application refused. He appealed to the sheriff claiming that his application had not been considered on its merits.
Held (1) that the 'policy' decision to limit the number of licences was not per se ultra vires but that the 1982 Act envisaged that the optimum number be used merely as a guideline and not as a rigid rule, and that to that extent the respondents had fettered their discretion and had thus erred in law;
(2) that by failing to inform the appellant of the inquiries on which their decision was based and of the letter of objection, and by failing to give him the opportunity to comment, the respondents were in breach of para 4 of Sched 1 to the 1982 Act and had thus erred in law;
(3) that these failures constituted also a breach of natural justice; but
(4) that the appellant had failed to aver what were the incorrect facts on which the respondents had based their decision or how these facts had affected it, and this ground of appeal dismissed. The appeal was allowed on the other grounds and the application remitted to the respondents for reconsideration.
CASES-REF-TO:
Bowes v City of Glasgow District Council, Glasgow Sheriff Court, 8th July 1985; unreported Freeland v City of Glasgow District Licensing Board, 1980 SLT 101 Holt v Watson, 1983 SLT 588 Kerrigan v Adams, Glasgow Sheriff Court; unreported Limerick v Hamilton District Licensing Authority, Hamilton Sheriff Court, 24th October 1984; unreported McShane v City of Glasgow District Council, Glasgow Sheriff Court; unreported Mecca Ltd v Kirckcaldy Burgh Licensing Court 1975 SLT (Sh Ct) 50 Moughal v Motherwell District Licensing Board, 1983 SLT (Sh Ct) 84 R v Liverpool Corporation [1972] 2 QB 299 R v PLA ex parte Kynoch [1919] 1 KB 176
Stevenson v United Road Transport Union [1977] 2 All ER 941.
INTRODUCTION: The grounds of appeal and the other circumstances of the case are set out in the following note of the sheriff, who on 17th February 1988 allowed the appeal and remitted the application to the respondents for reconsideration.
PANEL:
Sheriff JS Mowat
JUDGMENTS: SHERIFF MOWAT: This appeal against the refusal by the respondents to grant a taxi licence was originally taken in 1984. It was one of a number of appeals following the first decisions made by them under Part II of the Civic Government (Scotland) Act 1982, which replaced Part VA of the Glasgow Corporation Consolidation (General Powers) Order Confirmation Act 1960. This case was sisted to await the outcome of another appeal which had been regarded as a test case, but which did not reach finality in the sense that the matters raised were judicially determined. The sist was therefore recalled and this case proceeded to a debate.
Most of the facts averred are agreed and it would be as well to set these out in short compass.
1. Before considering any applications under the new statute, the respondents set up a special sub-committee to consider, in particular, the requirements of the 1982 Act. After considering the report of the sub-committee, the respondents decided to limit the number of taxi licences to 1,428.
2. A letter of objection from the Glasgow Hackney Carriage Trade Association dated 9th July 1984 was taken into account by the respondents in reaching their decision on the appellant's application.
3. In considering 144 applications from persons who had previously held taxi licences, the respondents inquired as to the length of time each applicant had held a taxi-driver's licence and listed them in chronological order. This list was taken into account by the respondents in reaching their decision.
4. The fact that the results of the inquiries made by the sub-committee and of the inquiries as to the length of time applicants had held a taxi-driver's licence and the letter of objection would be taken into account in deciding on the appellant's application was not intimated to the appellant, and he was not given an opportunity to be heard or to notify the respondents of his views in writing.
5. The respondents took a policy decision to issue no more than 1,428 taxi licences.
Having granted licences to all applicants who had previously held an operator's licence, they granted a further twenty-three licences to the first twenty-three names on the chronological list and refused all other applications. The appellants application was not considered on its individual merits.
On this basis, the appellant appeals on four grounds:
(1) Error in law.
(2) Decision based on incorrect material fact.
(3) Refusal of natural justice.
(4) Unreasonable exercise of discretion.
(1) Under the first head, the appellant avers that the respondents failed to follow the procedures prescribed in paragraph 4 of Schedule 1 to the 1982 Act in that they failed to notify the appellant that they intended to take account of inquiries made by the sub-committee, inquiries into the length of time applicants had held taxi-drivers' licences, and the letter of objection, and failed to give the appellant an opportunity of making his views known. He also avers that they allowed the objection to be made out of time. It is also averred that in purporting to fix a maximum number of licences to be issued, they acted ultra vires.
(2) The incorrect material fact founded upon is the inaccuracy of the chronological list of taxi drivers' licence holders. It is said that two drivers were assigned wrong dates and three had ceased driving taxis for periods during the time they held drivers' licences.
(3) The breach of natural justice alleged is similar to the first error in law alleged, ie, the taking into account of certain matters without notifying the appellant and giving him an opportunity of being heard or making his views known.
(4) The unreasonable exercise of discretion is said to be the failure to consider the appellant's application on its merits and the unreasonable conclusion set out in the respondents' statement of reasons 'that to grant even one more taxi licence (than 1,428) would have an adverse effect on the general availability to the public in the area of the City of Glasgow District on the services of taxis or the cost of providing these services'. The pursuer avers: 'Said conclusion is so unreasonable that no reasonable licensing committee or sub-committee could have reached such a decision.'
Each party has a general plea to the relevancy of the averments of the other and Mr Ballance, for the respondents, argued first in support of his plea. He submitted first that although paragraph 4(1) of Schedule 1 to the 1982 Act provided that:
'In considering an application for the grant or renewal of a licence, a licensing authority may make such reasonable inquiries as they think fit and include the results of these inquiries in matters they take into account, but where they intend so to include any of these results they shall notify the applicant of that intention'
the inquiries made by the sub-committee were not made in the course of considering the appellant's application and accordingly did not fall within the scope of the paragraph. There was therefore no need to notify the intention to have regard to the report of the sub-committee. He accepted that the inquiries into the length of time applicants had held drivers' licences might fall under paragraph 4(1).
It was not necessary to inform the appellant how long he had held such a licence. That was a fact which was well known to him. The essential issue was whether the respondents had a right in law to fix the number of licences to be issued in advance of considering the applications. If they had, the other issues did not arise. In any event, the appellant did not aver what views he would have put forward if given the necessary notification and the opportunity of doing so, and how this could have altered the decision. In the absence of such an averment, the contention that the procedural failure was an error in law was irrelevant.
In relation to the case of basing the decision on an incorrect material fact, he argued that the averments were irrelevant because they failed to disclose how any inaccuracies affected the position of the appellant and resulted in the refusal of his application. He nowhere suggested that if the list had been accurate he would have been granted a licence. The allegation that the appellant was denied natural justice was irrelevant unless we were told what the appellant would have said if given the opportunity, and that this might have altered the decision of the respondents.
Turning to the allegations that the decision represented an unreasonable exercise of discretion, he said the central issue was whether the policy decision to fix a maximum number of licences was justified. He cited the case of Holt v Watson and the obiter dictum of Lord Justice-Clerk Wheatley at p 591 that the licensing authority in that case was entitled to formulate and proceed upon policy grounds and, in particular, 'was perfectly entitled to restrict the number of cab-operators' licences in the city to meet the needs of the city'.
He also referred me to the case of Bowes v City of Glasgow District Council decided in this court on 8th July 1985 by Sheriff Horsfall, where the statement of reasons given for the respondents' decision was the same as in the present case. Sheriff Horsfall cited the terms of section 10(3) of the 1982 Act and went on to say: "From that it would seem to follow that a licensing authority may for the reasons given set an upper limit to the number of taxi licences to be issued in its area.'
Mr Ballance also referred to an unreported decision of Sheriff Lovat in Hamilton Sheriff Court on 24th October 1984 in the case of Limerick v Hamilton District Licensing Authority, which was on all fours with Bowes and in which the fixing of an upper limit was upheld. He finally submitted that in this case the appellant sought to attack a policy decision which was taken before his application was considered, and it was not proper to do so in the course of an appeal against a decision in respect of an individual application.
Mr Kelly, for the appellant, first replied to Mr Ballance's contention that the decision to limit the number of licences was not part of the consideration of the appellant's application and so did not fall under paragraph 4(1) of Schedule 1. He referred to a decision of Sheriff Lockhart given in the unreported case of McShane v City of Glasgow District Council in the course of which he said this:
'The letter of 31st July 1984 makes it in my opinion clear that part of the respondents' decision to refuse the licence was that they had formed the opinion that 1,428 licences in the City of Glasgow was enough and that to grant this application would increase that figure. I do not think it is correct to say that that opinion, which the respondents reached under section 10(3) of the Act, can be regarded as a fact on which the decision was based. It is properly part of the decision.'
Mr Kelly then disputed Mr Ballance's contention that unless the argument that the limit was wrongly fixed succeeded, the other issues raised by the appellant could not arise. He submitted that even if that part of his case failed, he was still entitled to argue that the procedure had been wrong in law, contrary to natural justice, an unreasonable exercise of discretion, and that the decision had been based on incorrect facts.
He made submissions in support of his own preliminary plea. He conceded that the question of incorrect material facts could only be decided after proof, but contended that I could decide the other grounds of appeal on the pleadings. Dealing first with the question of whether fixing a rigid limit to the number of licences issued as a matter of policy was ultra vires, he accepted that this point had not been decided in the cases of McShane and Bowes in a manner adverse to his client.
Neither decision was binding upon me, and I was urged not to follow them on the ground that each was based on a misrepresentation of obiter dicta in Holt v Watson and a failure to have regard to the subjectam materiam in that case. Limerick could be distinguished because there was no plea in that case that the fixing of a limit constituted an error in law. Insofar as the decisions in Bowes and McShane were founded upon the obiter dictum of Lord Wheatley, they were wrongly decided. Lord Wheatley had referred specifically to section 19 of the Dundee Corporation Order Confirmation Act 1969, which provided that the authority could refuse a licence if they considered a sufficient number had already been granted. This had no bearing upon the position under the Civic Government (Scotland) Act 1982, which had no similar provision. Sheriff Horsfall, in the case of Bowes, had said that it seemed to follow from section 10(3) of that Act that an upper limit could be set, but it was difficult to see why that should be so. Section 10(3) provided that [the sheriff quoted the subsection as set out above and continued:]
This represented a significant change of language from the express reference to sufficient numbers in various local Acts, including section 41(2)(b) of the Glasgow Corporation Consolidation (General Powers) Order Confirmation Act 1960. In that situation it should be assumed that the intention of Parliament was to change the law so as to exclude an express power limit numbers. Such a power was restored to some extent by Schedule 7 to the Transport Act 1985, which substituted a new section 10(3) for the one cited.
He submitted that the purpose of this amendment to the 1982 Act was again to change the law and restore a power which had not been clearly conferred by the original section 10(3). Accordingly, he argued that section 10(3) in its original form must be examined. It clearly put the matter within the discretion of the authority considering an application because they were to refuse a licence if 'in their opinion' granting it would have an adverse effect. This meant they could no longer set a limit in advance as a matter of policy but must consider each application and decide whether granting it would have an adverse effect.
This was in line with passages in De Smith's judicial Review of Administrative Action (4th edn), particularly on pp 285 and 311, to the effect that a licensing authority must not disable themselves from exercising a discretion on each individual case, in particular by the adoption of a fixed policy rule. In the present case the respondents had closed their minds to individual cases, and this was not in accordance with section 10(3) and was ultra vires.
He submitted in any event that the respondents had erred in law in taking into account the results of inquiries by the sub-committee, the results of inquiries into the periods for which licences had been held, and the letter of objection, without notifying the appellant that they would do so. This was clearly contrary to the provisions of paragraph 4(1) and (3) of Schedule 1 to the Act. The breach appeared to be admitted in relation to the periods of holding licences and the letter of objection. Accordingly, the respondents' second plea-in-law should be repelled.
Mr Kelly turned to the question of the decision being contrary to natural justice. This overlapped with the question of an error in law in that the failure to notify and give the appellant a right to reply were contrary to natural justice (De Smith, p 196: Stevenson v United Road Transport Union at p 951). The reference to a fixed limit was similar to use of local knowledge in licensing cases and notice should have been given that regard would be had to it (Freeland v City of Glasgow District Licensing Board; Mecca Ltd v Kirkcaldy Burgh Licensing Court; Moughal v Motherwell District Licensing Board).
Again these breaches were admitted, so the respondents' fourth plea-in-law should be repelled. In R v Liverpool Corporation it had been held that although the fixing of a maximum number could not be interfered with, the court could intervene if it was used unfairly. If a limit was lawful, it had not been fairly applied in the preesnt case.
Finally, Mr Kelly dealt with the question of unreasonable exercise of discretion. His main case was that there had been no exercise of discretion, but if there had been, he submitted, it had been unreasonable. The respondents admitted the application had never been considered on its merits.
He argued that the fixed limit should not have prevented this. The authority should at least have left 'its mind ajar' (De Smith, p 312; R v PLA ex parte Kynoch). In any event, it was unreasonable to say that one more taxi would have an adverse effect. In the whole matter, Mr Kelly asked me to sustain pleas 1, 3, 4 and 5 for the appellant and repel the pleas-in-law for the respondents. He asked me to grant the application or, failing that, to remit the matter for reconsideration.
In reply, Mr Ballance reiterated the following points:
(i) The fixing of a correct number of licences in advance was not part of the decision to refuse any particular application and so does not fall under paragraph 4 of Schedule 1 to the 1982 Act.
(ii) Setting a limit as a primary basis for a decision is not wrong in law. There was power to do so under the previous local Act for Glasgow. Section 10(3) of the 1982 Act did not have a specific reference to numbers. It broadened the basis on which applications could be refused. Any kind of adverse effect would justify a refusal, provided it was not fanciful. There was still an implied power to fix a maximum number, so the decisions in Holt and Bowes were still relevant. It was for the appellant to show that fixing a limit was outside the ambit of section 10(3).
(iii) If setting a limit was ultra vires, it would be open to the appellant to argue that the figure of 1,428 was unreasonable, but it would not be enough to suggest that one more licence would not make any difference (Kerrigan v Adams, unreported decision of Sheriff Principal Reid at this court). There was no averment as to what the correct limit should be.
(iv) This was not an appropriate action in which to challenge the fixing of a limit because that was not part of the decision in this particular case. It should be challenged by means of judicial review.
(v) The only thing the appellant could legitimately challenge is his place in the queue and he does not aver that had the list been accurate he would have been in the top twenty-three who were granted licences. He submitted there had been no error in law; there had been no unreasonable exercise of discretion because there had been no exercise of discretion at all and the respondents were not found to exercise it if the grant of a licence would have exceeded the limit; there was no breach of natural justice if the respondents were not bound to deal with individual applications.
There is no doubt in my mind that the decision to fix a maximum number of licences to be issued before dealing with individual applications was an essential part of the adjudication on each application. Indeed, in a large number of applications it was the only decision made in respect of them. I have no hesitation in following Sheriff Lockhart's reasoning at p 51 of his judgment in the case of Bowes and it is on that basis that I consider the various grounds of appeal put forward in this case.
Errors in law
(a) Was the fixing of a maximum number of licences as a matter of policy ultra vires? Insofar as the decisions in McShane and Bowes were founded upon the obiter dictum of Lord Justice-Clerk Wheatley in the case of Holt, I find myself unable to follow them. The statement was clearly related to section 19 of the Dundee Act, and I am not persuaded that Lord Wheatley would have made the same observation had he been considering section 10(3) of the 1982 Act. Accordingly, I find it necessary to examine the terms of the latter subsection to see whether it gives a clear authority for the fixing in advance of a maximum number of licences which will be strictly adhered to, with the result that any applications dealt with after that number have been granted are automatically refused without being considered on their merits.
The first thing to be noticed is that the subsection declares that it is to be without prejudice to paragraph 5 of Schedule 1 to the Act. That paragraph relates inter alia to grounds on which a licence may be refused and is concerned mainly with the suitability of the applicant and/or the vehicle in respect of which a licence is sought. They do, however, have a general right to refuse 'if there is other good reason for refusing the application.' Section 10(3) goes on to provide that a licensing authority 'shall refuse an application . . . if, in their opinion, granting it would have an adverse effect on the general availability to the public in their area of the services of taxis or the cost of providing these services'. I do not necessarily agree with Mr Kelly that this wording has less to do with the number of licences to be issued than the provisions of the older local Acts. It seems to me at least one of the ways in which granting a licence could have such an 'adverse effect' could be to result in over-provision in the area.
I accept Mr Ballance's suggestion that the subsection gives a wider power of refusal in that the maximum number is not the only consideration to be borne in mind when deciding whether the grant would produce an adverse effect. For example, the licensing authority might think that the supply of taxis might be spread more evenly if a licence to an operator based in one area were granted and the application from one based in another area were refused.
I have come to the view that the subsection is still concerned mainly with the number of licences to be issued and that there is nothing wrong in the local authority deciding in advance (i) an optimum number of licences and (ii) that as a matter of policy any applications which would, if granted, result in an increase in that number should be closely scrutinised to see if granting them would, in the opinion of the licensing authority, produce an adverse effect. On the other hand, it appears to me that the subsection envisages that the decision as to whether there will be an adverse effect must be made when an individual application is considered and in the light of the circumstances prevailing at the time.
In other words, the optimum number selected in advance should be regarded as a guideline and not as an inflexible rule. I am confirmed in that view by the terms of the new section 10(3) introduced in the Transport Act 1985, Schedule 7 which reads:
'(3) Without prejudice to paragraph 5 of Schedule 1 to this Act the grant of a taxi licence may be refused by a licensing authority for the purpose of limiting the number of taxis in respect of which licences are granted by them if, but only if, they are satisfied that there is no significant demand for the services of taxis in their area which is unmet.'
This seems to me to indicate that if an optimum number had been decided upon in advance it can only be a guideline and the authority must satisfy itself at the time of considering the application whether it is still applicable as being sufficient to meet the demand.
Such a view of the right of a licensing authority to decide on an optimum figure in advance seems to be in line with the passages from De Smith referred to by Mr Kelly and the cases cited therein. At p 285 De Smith says:
'The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising its discretion in each individual case.'
I reocgnise that this passage is directed at the situation where a body allows outside forces to fetter its discretion and not at the voluntary fettering of its discretion by its own previous decision, but the principle that each case must have the discretion exercised in deciding it may be relevant. Again at p 311, De Smith says:
'A tribunal trusted with the discretion must now, by the adoption of a fixed rule of policy, disable itself from exercising its discretion, in individual cases . . . A body to which discretion has been entrusted may also, of course, have been expressly authorised to make regulations that in some way affect its exercise of discretion. To the extent that it has exercised its statutory rule-making power it must decide individual cases by reference to any relevant provision in its regulations, rather than by applying the terms of the empowering Act. But otherwise discretion may not generally be validly exercised by a public body solely on the basis of some policy or rule that it had informally previously adopted.'
It seems to me that the provisions of section 19 of the Dundee Act and section 41(2)(b) of the Glasgow Act were clear examples of express authority to regulate the number of licences to be granted, but that section 10(3) in its original form gave no such express authority.
On the respondents' pleadings it seems clear that they treated the maximum number of licences as a *rigid* rule rather than as a *guideline* and so *fettered* their own discretion to an *unacceptable* degree, and so **erred** in law in what I have already stated to be an essential element in the decision appealed against.
(b) Did the respondents err in law by contravening paragraph 4 of Schedule 1 to the 1982 Act in respect of (i) the findings of the sub-committee in regard to the maximum number of licences to be granted; (ii) the information gathered as to when the various applicants first held a taxi-driver's licence; and (iii) the letter of objection from the Glasgow Hackney Carriage Trade Association? Having held that the results of the inquiries of the sub-committee which resulted in the fixing of a maximum number of licences were taken into account as an essential part of the decision appealed against, it follows that the appellant should have been informed by the respondents of their intention to take them into account and given an opportunity of expressing his views.
He might well have had views on the appropriateness of the number chosen or on whether it should be rigidly adhered to. Equally, the results of their inquiry into the length of time applicants had held a taxi-driver's licence and their intention to take these into account should have been notified. The appellant might have had views as to whether this was a proper way to fix priority as between applicants and as to the accuracy of the list. Again if the respondents intended to treat the said letter as a relevant objection, the appellant should have been given notice of its terms and an opportunity to express his views. This clearly was not done and in reaching a final decision on the appellant's application, the respondents were in breach of paragraph 4(3) of sCHEDULE 1 TO THE act.
For these reasons I consider that the averments of both parties indicate that the respondents erred in law in reaching the decision which they did, and I have accordingly sustained the first plea-in-law for the appellant and repelled the second plea-in-law for the respondents.
Was the decision contrary to natural justice?
To the extent that the appellant was not given an indication of the factors which the respondents intended to take into account and given an opportunity of making his views on them known, I consider the decision was contrary to natural justice.
This is a case which is in some ways analogous with Freeland v City of Glasgow Licensing Board, where it was held that if a licensing board wished to have regard to matters within its special knowledge, it must make these known to an applicant and give him a chance to be heard in relation to them.
Accordingly, I have sustained the appellant's second plea-in-law and repelled the fourth plea-in-law for the respondents. I reject the arguments of Mr Ballance that an appellant must, in order to succeed on this ground, show that had the rules of natural justice been followed he would have been granted a licence.
Where the breach of natural justice consists in failure to give proper notice of the matters to which tribunals will have regard and an opportunity of being heard, it is impossible for anybody to aver what the result would have been had the proper procedure been followed. It is enough that the respondents acted contrary to natural justice.
**Was the decision based on incorrect material facts? **
****I consider that on this branch of the appellant's case he must aver not only that there were incorrect facts founded upon by the respondents but also that their decision was affected by those errors. ****
In the present case, I can see nothing in the averments as to the alleged errors in the list of applicants and the period for which each had held a taxi-driver's licence to indicate that had the list been correct, the appellant would have had sufficient priority on it to have been granted a licence. For that reason, I have repelled the appellant's second plea-in-law and sustained the respondents' third plea-in-law.
Did the respondents exercise their discretion in an unreasonable manner?
The appellant's main case is, of course, that the respondents did not exercise their discretion at all in deciding this case and that, as I understood it, was Mr Ballance's answer to this part of the appellant's case. However, Mr Kelly argued that if discretion was exercised at all, it was exercised unreasonably in deciding that the granting of one more licence when the limit of 1,428 had been reached would have an adverse effect in terms of section 10(3). I am not prepared to accept this argument.
As I have said, I consider that it would have been perfectly proper to use the maximum figure as a guideline, and if the respondents exercised any discretion in deciding to adhere to it on this occasion, I would not be prepared to hold that to be unreasonable exercise of it. Accordingly, I repel the appellant's fourth plea-in-law and sustain the fifth plea-in-law for the respondents.
Having sustained the first and third plea-in-law for the appellant, it follows that the deliverance of the respondents dated 12th July 1984 must be recalled. I am not, however, prepared to take the next step sought in the appeal and grant the licence. I am only prepared to remit the case with these reasons for my decision to the respondents for reconsidation. Mr Kelly raised the question whether in that event the respondents would be bound by the origianl version of section 10(3) of the 1982 Act or the amended version introduced by the Transport Act 1985.
As I have indicated earlier, I take the view that the amended version is a more clearly expressed indication of what was envisaged by the original version and I doubt if the choice of procedure should greatly affect the way in which the respondents deal with the matter. However, it seems to me that they should reconsider the application as one lodged in 1984.
DISPOSITION: Appeal allowed, application remitted to the respondents for reconsideration.
SOLICITORS: Hughes, Dowdall & Co, Glasgow for the Appellant (Pursuer); Director of Administration, City of Glasgow District Council for the Respondents (Defenders).
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