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Another failure by Glasgow council in respect of Natural justice.
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CITY OF GLASGOW DISTRICT COUNCIL v LEE GRANT MARSHALL DOYLE T/A GAVAHAN TAXIS AND OTHERS
COURT OF SESSION: INNER HOUSE (EXTRA DIVISION)
1995 SLT 327, (1993) Inner House Cases
26 November 1993
COUNSEL: Act: Hodge Simpson & Marwick WS; Alt: Pepples John G Gray & Co WS (for Flowers & Co, Glasgow)
PANEL:
Lord Coulsfield, Lord McCluskey, Lord Penrose
JUDGMENTS: LORD COULSFIELD, (Reading the opinion of the court): The appellants in these three appeals are the City of Glasgow District Council in their capacity as the authority responsible for the licensing of taxis and taxi drivers in Glasgow. At a meeting held on 22 January 1992, the appellants refused applications for the grant of taxi licences made by the three respondents to the present appeals. In one of the cases, the application was made for the grant of two taxi licences, so that four licences in all were the subject of the applications by these respondents.
The material circumstances affecting all three appeals are identical and it is not necessary to draw distinctions between the position of the various respondents. At the meeting of the appellants' Sub-Committee on licensing applications, the four applications in question were presented on behalf of the respondents by one solicitor and the submissions in respect of the four were heard together.
In a statement of reasons for the decision to refuse the applications, dated 3 February 1992, the appellants stated, inter alia, that in reaching their decision they had taken into account a decision taken by the Licensing Committee on 12 February 1991 that, without prejudice to the consideration of all taxi licence applications on their merits, 1428 was the number of taxi licences considered necessary to meet the demand for the services of taxis in Glasgow, the fact that by the time the applications came to be considered at the meeting 1425 licences had already been issued and the fact that a further seven applications for the grant of a taxi licence fell to be considered at the same meeting.
The Sub-Committee state that they also considered objections from and submissions on behalf of persons interested in taxi operation in Glasgow. The statement of reasons for the decision recorded that it had been submitted that all the four applicants had recently been holders of taxi licences but had forgotten to submit timeous applications for renewal, that as a result they had suffered prejudice in certain respects, and that their businesses had been operated in an impeccable manner while the licences were in force. The reasons for the decision of the Committee then state:
"The sub-committee, at said meeting, were required to consider these four applications along with other applications for the grant of a taxi licence as aforesaid. In view of the fact, therefore, that in total 11 applications now fell to be considered and that, at most, in terms of the policy on limitation on numbers as aforesaid, only three licences were available to be issued, the sub-committee considered that the fairest way to proceed would be to hear all applications individually and then determine which, if any, merited the grant of a taxi licence. Having considered the applications individually the sub-committee determined that one had particular/outstanding merit and it was decided that this application should be approved. The sub-committee were then left with ten applications but only two licences remaining available for issue.
Having considered each application carefully and the circumstances prevailing in each case, the sub-committee considered that the appropriate way to proceed was to distinguish between them on the basis of the number of years service/experience the applicants had in the trade, generally as holders of taxi driver's licences. The sub-committee were not prepared to give favourable consideration to applications simply because the applicants were previously holders of taxi licences which they had forgotten to renew timeously.
Therefore, having determined the criteria by which they would distinguish between the applicants, the sub-committee determined that two of the other applicants had considerably more years experience in the trade in the capacity of taxi drivers and the sub-committee considered that, on that basis, the applications of those two should be approved.
Therefore the four applications submitted by your clients were refused at that stage as, having taken the said decisions in favour of the other applicants, no licences were then available as all 1428 as aforesaid had been granted/issued. This decision was taken in light of said policy decision, as the sub-committee determined that, in terms of section 10(3) of the above Act, there was no significant demand for the services of taxis in their area which is unmet with all said 1428 licences granted/issued".
The respondents appealed to the sheriff. The crave in each appeal requested the court to reverse the decision of 22 January 1992 to refuse to grant the application for a taxi licence and failing such reversal to modify said decision or remit the case to the respondents with a recommendation that the licence be granted with or without such conditions as the court might deem appropriate. In each case, the first plea-in-law was that as the appellants had exercised their discretion in an unreasonable manner decree should be granted as craved and secondly that the authority having acted contrary to natural justice decree should be granted in terms of the first crave.
There was also a plea-in-law that the answers being lacking in specification and irrelevant decree should be granted in terms of the first crave. On 16 November 1992, the sheriff sustained the third plea-in-law for each of the respondents to the extent of remitting the applications to the District Council for reconsideration. In the note attached to his interlocutor, the sheriff set out his reasons as follows:
"As the respondents had set a ceiling on the number of taxi licences to be issued by them it follows that when the number of applications exceeds the quota, there must be an element of competition between the various applicants. All the applicants should be allowed to start off on a level field. In my view this did not happen in the present cases and there has been prejudice in my view to the appellants' in arguing their appeals before me because of lack of specification so far as one of the successful applications is concerned. On this matter I refer to the application which was granted because the committee were of opinion that it had special merit. This in my view is entirely lacking in specification.
There is a duty on the respondents to give clear reasons for their refusals so far as the appellants' applications are concerned. I find it difficult to see how the appellants can be expected properly to argue their appeals on the nebulous reason given for the success of one of the applications. In my view they should have specified in just what way the appellant in that particular case had shown special merit. In the case of two successful applications they gave as their reasons inter alia the length of service of the applicants as taxi drivers.
This at least has merit in that it specifies their reason for granting the applications. I am therefore upholding the appellants' plea to relevancy. I am of opinion that the respondents acted contrary to natural justice in granting two of the competing applications to persons because these persons were alleged to have years of service as taxi drivers. It was common ground between parties that a taxi licence is a very different thing to a taxi-driver's licence. It was conceded by Mr Romano for the respondents that there was no need for an applicant for a taxi licence to have any experience as a taxi driver or indeed as a driver of any kind and that the respondents in their letter sent to the appellants prior to the hearing where they specified the limitation on the number of taxi licences which were available made no mention of the fact that they would take into consideration the applicant's service or experience as taxi driver.
It will be seen from the evidence given by Mr Marley (which was accepted by the respondents) that nothing was said prior to the applications being considered about any experience of this kind being required. The appellants were therefore completely ignorant of this fact and of course were unable to address the respondents on this facet of matters. From what was said before me I had the impression that the respondents had only hit on this reason whilst they were considering the competing applications and obviously thought that this was an easy way out of their dilemma".
The sheriff went on to reject a number of points made on behalf of the present respondents. He rejected an argument that the applicants should have been admitted to the hearings of other applications and of objections and accepted that because the hearings involved matters related to financial status and business the authority acted quite properly in hearing each application in private. He further rejected an argument that the financial loss sustained by the applicants was relevant. He then went on to consider an argument that he should order grant of the applications rather than a remit for further consideration but held as follows:
"From the authorities quoted to me it seemed that I should only reverse the decision of the committee if I considered that they would be so prejudiced in consideration of a remit back as to render it unlikely that they would alter their original decisions. In this case I do not believe that this consideration arises. It appears to me that in granting the two applications to persons because they had experience as taxi drivers the respondents merely took into account matters which should not have affected the issue particularly in view of lack of notice to the appellants that this criterion would be considered by them . . . I would also stress in remitting these cases back that the number of licences fixed at 1428 is not mandatory but discretionary (Sheriff Mowat's judgment in Aitken v City of Glasgow District Council 1988 SCLR 287) and I can see no reason why the extra licences applied for by the present appellants should not be granted if the respondents so decide".
The present appeal was put forward on three grounds which are dealt with in the order in which they were presented. The first ground of appeal was that the sheriff had erred in holding that experience as a taxi driver was irrelevant. It was submitted that it was legitimate, under section 10(3) of the Civic Government (Scotland) Act 1982, to adopt a policy limiting the number of licences, to inform applicants about the policy to hear the applications and to decide in accordance with the policy. Reference was made to R v Port of London Authority ex parte Kynoch [1919] 1 KB 176. In the present case, the authority had had 11 applicants and three licences to grant in accordance with the policy.
One of these was granted to an application of exceptional merit and, as regards the other applicants, reference to experience as taxi drivers was a legitimate means of distinguishing between the applicants. It was true that it was possible to get a taxi operator's licence without driving experience but driving experience remained a relevant factor and therefore a useful criterion to adopt in such a situation. For the respondents, it was submitted that it was clear that taxi operator's licences, which fell under section 10 of the 1982 Act were different from taxi driver's licences which fell under section 13. The policy adopted by the appellants might be sound in general but the number had been remained fixed at 1428 for a long time and never exceeded. From the Statement of Reasons it could be inferred that the Committee had come to the decision with a fixed determination to grant no more than three licences as in fact they had done.
It was not, however, rational to give weight to driving experience as opposed to operating experience or, indeed general business experience. Before the sheriff, the only ground put forward to justify the use of this criterion had been its objectivity but that was of no significance in itself. At best, experience as a driver could become a relevant consideration only when all other considerations were equal, including that of experience as an operator.
In our view, this issue can be disposed of quite briefly. We see no reason to regard experience as a taxi driver as necessarily being an irrelevant consideration in relation to an application for an operator's licence. According to the particular circumstances, it might be a consideration which would bear greater or less weight, and it appears unlikely that it would ever be the sole consideration to which regard might be had in determining applications. Nevertheless, it is, in our view, easy to see that experience of the actual driving of a taxi in the area could well be relevant to undertaking the responsibilities of a taxi operator. Accordingly, we consider that the appellants could not be said to be in error in the present case merely because they took experience as a taxi driver into account in considering the various applications.
The second ground of appeal was that the sheriff was in error in suggesting that an opportunity should have been given to each of the applicants to comment upon the question of experience and upon what was said on behalf of the other applicants. When dealing with a number of applications, as in this case, it was not part of the role of an administrative body to tell the applicants what facts to put forward in support of their applications. It might be more difficult for the authority if the test adopted was one on which no information was given at all and in that case they might have to reconvene their meeting. But where it was obvious that there was a relevant factor such as driving experience, there was no need for the authority so to proceed. The case was to be distinguished from the case where the local authority relied on knowledge of its own which had not been put to an applicant.
There would have to be a lack of notice of the facts relied on in relation to refusal and in the present case the criticism, if any, was not reliance on facts but a failure to explain the criteria being applied. It was accepted that the consequence of that position was that the appellants said that it was fair in this context to leave to the applicants to put up whatever arguments they wished and to reach a decision on that basis and it was accepted that that meant that the applicants, to an extent, presented their applications blind but any other view would place an excessive burden upon the authority. The respondents had not been deprived of the chance of putting forward their own experience as a relevant consideration although they were not alerted to the fact that the authority would apply the particular criterion in question. For the respondents, it was submitted that the sheriff had been entitled to conclude that the District Council acted in a way inconsistent with natural justice in that the respondents had been denied the opportunity to address themselves both to the validity of the use of experience as a taxi driver as a criterion and as to the application of that criterion in their own cases, as compared with the cases of other applicants.
In our opinion, the sheriff reached a correct conclusion on this point. It may be that on an occasion when applications are made for licences and there is no ceiling on the number of licences that may be granted, it will be sufficient for the authority to leave it to the individual applicants to put themselves forward in the best light that they can and to submit those facts and circumstances which they think will advance their application. The position must, however, alter when a ceiling, whether precisely fixed or containing some degree of flexibility, is imposed upon the number of licences that may be granted. By imposing such a ceiling, the authority necessarily require that an element of competition will enter into the presentation of applications and it follows, in our view, that the authority can act fairly among applicants only if they give the applicants some warning, either in advance of the submission of applications, or in advance of the decision to grant particular selected applications, of the grounds which they propose to use to discriminate between the applications submitted to them.
In the present case, although, for the reasons given above, it is accepted that experience as a taxi driver is or may be a relevant consideration in the type of application with which we are concerned, it is not by any means so obvious that it is one which should be treated as the determining consideration among a group of applicants unless, as was submitted on behalf of the respondents, all other considerations are equal in every respect. It follows that the importance and indeed the relevance of driving experience were not so obvious that it was unnecessary to give notice to applicants that the length of driving experience might be treated as decisive of the competition.
Accordingly, if the appellants proposed to proceed upon that basis notice should have been given. The need for such notice is emphasised in the present case by the circumstance that the appellants themselves did not proceed upon that condition alone in deciding which applicants should receive the three licences available. They relied upon other circumstances, the nature of which is not disclosed, to select one particular application as particularly meritorious.
These two considerations, lack of notice and the use of undisclosed criteria, amount, in our view, to a departure from natural justice. It was, at one stage of the appellants' argument, submitted that the provisions of the Access to Information Act 1985, and of section 50A of the Local Government (Scotland) Act 1973 and Schedule 7A to that Act prevented the appellants from disclosing information relevant to applications but counsel for the appellants eventually accepted that he was not able to argue that these provisions had any application to meetings of the District Council acting as licensing authority. In all the circumstances, therefore, the sheriff was correct in holding that the appellants' decision was vitiated by a failure in natural justice.
The third ground argued was that the sheriff had been incorrect in regarding the appellants' reasons for their decision as being insufficiently specific in so far as they proceeded upon the ground of special merit in a particular application. That argument depended upon the considerations relating to the confidentiality of information to which we have just referred and in view of the concession which has been mentioned does not require to be further dealt with.
The respondents in this case lodged a cross appeal in which they argued that the sheriff had been wrong in remitting the applications to the appellants for reconsideration. Paragraph 18(9) of Schedule 1 to the Civic Government (Scotland) Act provides inter alia that on upholding an appeal the sheriff may remit the case with reasons for his decision to the licensing authority "for reconsideration of their decision" or reverse or modify the decision of the authority.
It was submitted that the sheriff's power to grant an application was not limited to the circumstances to which the sheriff referred, that is to circumstances in which the authority could be regarded as so prejudiced that it would be unlikely to alter the original decision, and reference was made to GA Estate Agency Limited v City of Glasgow District Council 1991 SLT 16 and Butterils of Blantyre v Hamilton District Licensing Board 1986 SLT 14.
It was submitted that it was sufficient if there was good and sufficient reason not to remit. On the other hand for the appellants it was contended that the authorities cited did support the proposition that the question was whether the authority might be so prejudiced as to be unable to deal with the applications properly but here there had been no blatant and deliberate prejudice. Here there had to be a restriction on the number of licences to be granted to avoid injustice to existing taxi owners and operators and it could not be said that if the criteria applied had been properly explained the present respondents would necessarily have succeeded in their applications. The proper course therefore was to allow the appellants to reconsider the position. Such reconsideration would, of course, include the possibility of reconsidering the policy.
Some argument was also presented on the question of what is meant by reconsideration of a decision for the purposes of the statutory provisions and whether such reconsideration is a possibility in cases in which the original decision-makers, in the sense of the original members of the Committee or Sub-Committee which made the decision, would not be available because the membership of the body had changed. It is not necessary to examine those arguments and we would only observe that we are not convinced that the word "reconsideration" in paragraph 17(9) was necessarily intended to have a limited or technical meaning. In our view, it is sufficient for the decision of the present case to point out that it is impossible, either from the point of view of the appellants or from that of the respondents, to return to the situation as it was at the time of the appellants' meeting in January 1992.
Not only is it likely that membership of the relevant Committee or Sub-Committee will have changed, but it may well be that the number of taxi licences presently in operation will have altered and, in any event, the three licences which were granted in January 1992 have not been and cannot be revoked; so that the situation of the particular competition, in which eleven applicants were applying for three licences, cannot be recreated. In that situation, it seems to us that substantial justice requires that the present respondents should be granted the licences for which they applied. We appreciate that the effect of such a decision may be to cause the number of licences to exceed that established in the policy and that that may involve prejudice to existing licence holders. We see no way out of that difficulty and the problem, in our view, only emphasises the difficulties which arise from the imposition of a fixed limit in a situation such as this.
For these reasons we conclude that the proper course is to remit these cases to the sheriff with directions to grant the applications in question.
DISPOSITION: Cases remitted to the sheriff with directions to grant the applications in question
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