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CEC v 3maxblack
The case involving CEC v 3maxblack is based on an appeal application to extend the time frame of a licensing application beyond the six-month statutory period allowed by law under the statutory legislation contained in the Civic Government Scotland act 1982.
Scotland has a statutory process that imposes a six-month limitation on licensing authorities when determining licensing applications such as the ones applied for by 3maxblack. The Sheriff court has the power to extend the statutory period beyond six months if a licensing authority can persuade the court that the six-month period was insufficient for it to determine the license application.
Discharge of Functions by Licensing Authorities, Section 3 of the Civic Government Scotland act 1982. A recent examination of the 1982 act by the Scottish Executive found there was no need to reduce the statutory period of six months because in their opinion they felt the six month time frame was more than adequate in which to make a decision.
In this case Edinburgh city council was granted an extension beyond the statutory period so it could measure demand for the services of hackney carriage's in their licensed area. The council told the court they could not make a satisfactory decision without having before them the evidence of a survey, which they were currently undertaking,
The application to extend was contested by the licence applicants 3maxblack a Limited Liability Partnership who objected on several grounds but to no avail. The following is a summary of the decision issued in a report by Sheriff, Katherine EC Mackie on 27th July 2005.
Edinburgh council has in place a restricted hackney carriage policy that limits the number of Hackney carriage operator licenses to 1,260. When a licensing authority is confronted with an application for a new vehicle operator's license in order to refuse the application they have to be in possession of up to date evidence that shows there is no demand for the services of taxis that isn't already being met.
In late 2004 Edinburgh council were confronted with four such applications for hackney carriage operators licenses from 3maxblack. These applications were straightforward and Mr. Bell the respondent counsel said they could and should have been determined within the six-month time frame allowed by law. He implied that Edinburgh council was not in a position to refuse the applications because they had no documented evidence to prove whether demand did or did not exist. Mr Bell also suggested that Edinburgh council had acted in bad faith by prolonging the application process.
Mr. Doherty QC acting for Edinburgh Council conceded that although there was no evidence that proved categorically that demand did not exist, the council needed more time in order to complete a survey of unmet demand which would no doubt prove the presence or absence of any demand.
The final outcome of this appeal rested on the case law of Coyle v Glasgow city council. Sheriff Mackie interpreted the case law somewhat differently than the respondents counsel Mr. Bell.
The Coyle case concerned the provisions of Section 10(3) of the Civic Government (Scotland) Act 1982. Section 10(3) states. "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 unmet demand for taxis in the area".
In 1991 Glasgow licensing authority had determined that 1428 was the number of taxi licences necessary to meet demand in their district. The authority thereafter applied that figure as a matter of policy.
In 1996 Mr Coyle made an application to the authority for a new taxi operator's licence. The application was refused on the grounds that there was no significant unmet demand. The applicant appealed to the Sheriff who allowed the appeal and remitted the application back to the council, with a direction to grant the licence. Glasgow Council appealed the Sheriff's decision.
At appeal the Authority conceded that there was nothing in the material evidence before the Court to indicate that the licensing committee had reconsidered the figure of 1428 at any time since 1991. However, Glasgow council argued that it would be impracticable to consider the matter at every meeting.
The authority's appeal was refused.
The Court held that the licensing committee's assessment, under the relevant statutory provisions, had to be made in relation to the situation at the time when the application fell to be considered and that the committee had to be satisfied at that time that there was no significant unmet demand. As the committee had not applied their minds to the question of unmet demand at the time of considering the application, there was no proper basis on which they could be satisfied that there was no significant unmet demand.
As to the issue of practicability raised by the authority, Lord President Rodger had this to say:
"Counsel for the appellants submitted that it would be impracticable for the committee to consider the matter at every meeting". "We do not agree".
"It appears that from time to time the appellants carry out an exercise to determine the level of demand for taxis in their area. Presumably such an exercise lay behind the decision in 1991.
Where a figure has been determined in this way all that is required is that the matter should be kept under review by an official who has the "information" to judge whether the demand has increased since the matter was last considered. If he informs the committee that there has been no change in the level of demand, they can be satisfied that at that time there is no significant unmet demand if the relevant number of licences has already been issued. If, on the other hand, they are told that demand has increased, then they will require to reconsider the matter. "Unless they do so, they will not be able to refuse to grant licences under Section 10(3) since they will not know whether the existing number of licences is sufficient to meet the increased demand."
Sheriff Mackie found relief in the words of Lord Rodger in this relevant passage.
Where a figure has been determined in this way all that is required is that the matter should be kept under review by an official who has the "information" to judge whether the demand has increased since the matter was last considered.
We must assume that Sheriff Mackie took on board the whole of Lord Rodgers reasoning and not just that particular passage which may or may not have given her own reasoning some sustenance.
Sheriff Mackie relied heavily on the fact that the licensing officer had submitted a monthly report to Edinburgh council and on one occasion the report included a reference that a Stance survey had been carried out. There were consecutive monthly references to Stance and Street surveys over a two-year period but apart from the October 2003 report they all said the same thing, "no Stance or Street Surveys were carried out this month".
Each report replicated a carbon copy of the listed contents of the previous month's report. This leads me to believe that the style of the report was based on a ready made template which only needed altering when new data had been processed. This would explain the exact wording each month every time there was no street or stance surveys.
There is no conceivable reason as to why Sheriff Mackie could fail to take into account that over a two-year period of time from April 2003 to June 2005 there had only been one monthly report that stated a Stance survey had actually been carried out. With regard to Street surveys, none were ever undertaken in the same period of time.
Not withstanding the unambiguous ruling of Lord Roger that a licensing committee's assessment under the relevant statutory provisions has to be made in relation to the situation at the time when the application fell to be considered. And that the committee had to be satisfied at that time that there was no significant unmet demand. Seeing as the committee had not applied their minds to the question of unmet demand at the time of considering the applications, there was no proper basis on which they could be satisfied that there was no significant unmet demand.
It would appear Sheriff Mackie may have been selective in her reasoning?
On the other hand, the reasoning of Lord Rodger is quite clear. He is saying it is inconceivable under the present statute how a council who is not in possession of evidence detailing the presence or absence of demand could make a clear-cut decision that there is no unmet demand for the services of Taxis. The object of the legislation is to grant licenses, the onus is on every licensing authority that wishes to restrict numbers to show that demand is being met.
The relevant legislation is not meant to be a guessing game.
Sheriff Mackie saw fit to mention "It was accepted that the Taxi Licensing Officer's reports in themselves did not amount to an assessment of demand".
Lord Roger Said that, "an authority who was not in possession of evidence of demand must issue licenses".
One might be excused for thinking that the two quotes I highlighted above of Lord Roger and Sheriff Mackie were somewhat incompatible in their reasoning considering they both came to different decisions.
The Sheriff went on to say that, the purpose of the reports were to monitor the position and alert the Applicants to any indications that there might be demand, which was unmet.
The Sheriffs reasoning might have some substance if indeed that is what took place but we already know that the licensing officer only made one stance survey in a period spanning two years and that was the one conducted in October 2003. Stance surveys resumed in October 2003 after being curtailed in 2002 but there were no other stance surveys ever carried out after October 2003 right up to July 2005.
It may seem surprising that the Sheriff would mention the October stance survey while neglecting to mention that no other stance survey was ever carried out in the whole two-year period up to and including July 2005.
Sheriff Mackie hadn't finished digging a hole for herself because she then went on to say,
It is entirely reasonable to expect that following the issue of an additional number of licences a period of time would require to elapse within which to assess the impact of the additional licences.
The point Lord Rodger made in the Coyle case was that it matters not how many licenses were previously issued what matters is that the relevant licensing administration must have evidence of the presence or absence of unmet demand when an application falls at their door. Besides that the Sheriff had comprehensively failed to take into account that the Halcrow survey of demand was undertaken in 2001/2002 and it was now 2005.
The Sheriff went on to say,
It is clear from the evidence that the position was being kept under review. In October 2003, a few months after the issue of the additional licences was completed, the Taxi Licensing Officer carried out a stance survey".
What Sheriff Mackie neglected to say in her report was, that after that isolated stance survey in October 2003 the position was not kept under review. Therefore, for whatever reason Sheriff Mackie had misdirected herself by ignoring facts that were equally and perhaps more relevant than the position she had adopted.
Again Sheriff Mackie reiterated that,
"The occasional stance survey can be no more than a snapshot and the validity of the information must be doubtful if when the trade learn of the presence of the Taxi Licensing Officer they take steps to ensure that the stances are serviced. However it is a possible indicator of demand and the Applicants took steps to ascertain the position at that time. "
The passage above demonstrates that by this time the Sheriff had completely lost the plot. She yet again tries to convince herself that one stance survey in two years is adequate to satisfy what is required in section 10(3) of the Civic Government (Scotland) Act 1982.
She states that the occasional stance survey can be no more than a snapshot and the validity of the information must be doubtful?
She purposely used the word "occasional" simply because she wanted to give the impression that stance surveys were carried out on more than one occasion. "Isolated" would have been the correct word to use but as we know isolated has a completely different meaning than occasional and it certainly wouldn't have fit into the reasoning of Sheriff Mackie.
In respect of misrepresenting the facts it was stated by the Sheriff that Guidelines by the Department of Transport to English local Authorities recommend that a survey should be carried out every three years. The DfT have issued no such guidelines.
The DfT has stated licensing authorities that wish to retain a policy of Quantity control must make public their reasons for doing so every three years. The DfT has never put a time frame on a Survey of unmet demand but on the 3rd of August 2005 they issued a consultation document that suggested surveys were inconclusive. They mentioned no time frame had been set on the life of a survey but a survey might not be relied upon if older than three years.
One must not lose sight of the fact that this was an appeal for an extension of time to the six month statutory period of a licence application and as such the licences had not been refused. In effect Edinburgh city council were asking for an extension in order to gather evidence through a survey in order that they could process the applications from an informed view.
In other words Edinburgh council had already made up their mind that they weren't going to process the applications until such time a survey of unmet demand carried out by Jacobs Consulting was completed. The survey commenced in the late spring of 2005 and was due for completion at the end of July 2005. An interim appraisal of the survey was requested and received by Edinburgh Council in June/July 2005 some weeks after the six-month expiry date of the statutory time allowed to determine these license applications.
Just at what period in time Edinburgh council decided on a strategy of deferment is unclear because such a strategy is not documented in the minutes of their committee meetings and nor would you expect it to be. The strategy of deferment was probably thought out at a very early stage. The reasons for believing this, is because of the length of time it took Edinburgh council to process what would normally be deemed as straightforward applications.
In order to process the applications all that was required of the council was that they notify the police for the purpose of criminal background checks to determine if the applicants were fit and proper persons to hold a license. At the same time the relevant licensing committee would have to decide if there was evidence before them to refuse the applicants a license on the grounds of no unmet demand? Finally an arranged interview with the applicants could have been entered into if the council needed to ask any further pertinent questions such as financial standing and the ability to maintain in good order the prospective vehicles that are being licensed.
Those three elements were all that was required of the council in order to process these applications, yet they said "they could not do so within the six months statutory time frame?
In researching past license applications at no time has a license applicant been told to supply a vehicle for test before the council has offered the license? The last issue of licenses involved 49 applicants who were invited to apply for operator licenses without having to submit or give details about the vehicle they would license. Past recent history also shows that numerous applicants have applied for licenses under many different circumstances, all have been determined by the same licensing Committee in a reasonable time frame and not one applicant has had to supply a vehicle before the committee decided the fate of their application.
In order to understand why the council could not process the applications of 3maxblack within the allotted time frame I had to search the minutes of past committee meetings, to see how previous licensing applications had been processed.
It should be noted that in recent years Edinburgh council has never fully processed an application such as the ones before them now. The policy of Edinburgh council has always been to dissuade applicants from applying for licenses by informing them there are no licenses available. This policy resulted in applicants being placed on a waiting list. The ploy proved successful because in effect it resulted in Edinburgh council either refusing or deferring over 100 applicants without having to inform them of their legal right to appeal.
Unfortunately for the council they tried the same tactics on the wrong applicants and although the applicants were told In November 2005 that "there were no licenses available" it was only through their own insistence that they managed to have their applications accepted.
When a council is presented with an application for a license it is not up to a licensing clerk or officer to suggest the license application cannot be accepted. Nor can they say that it has been refused, or will be refused, or is likely to be refused? The application has by law to be placed before the relevant committee and it is for them to decide if the license is to be granted and not some council clerk or official.
It should have been obvious from these first exchanges and the nature of the applications that the process was going to be less than straightforward.
Having submitted the applications and demanded and having got a receipt for the same, the applicants could do no more than wait until they heard from the council.
The ball was now firmly in the council's court, they could have processed these applications in several ways but for obvious reasons they chose not to. The relevant act states that "the committee should meet within three months and the applicants notified within six months".
The question arises, "did the council apply their minds to the job in hand" or did they deliberately make a conscious decision not to process the applications? One has to consider why the applicants weren't processed in the six months statutory time frame. We ask ourselves were the committee and the licensing department inundated with so many applications for licenses that the delay could have been put down to high workload? Unfortunately for the council they can't find any relief in that excuse because all they had before them were the license applications of 3Maxblack. Hardly an excuse for being overworked.
We then have to explore if the license applicants themselves could be faulted for the delay? It appears that the applicants had made themselves available at all times and a speedy decision was in their own interest, at no time in this hearing was evidence ever produced that proved the council delay was caused by the actions of the license applicants.
We then have to look at the real reason behind the application extension, the one highlighted by Sheriff Mackie when she stated the following.
The Applicants wish to have the report from the consultants conducting the survey in order to consider these applications. The report is expected to be received on 29th July 2005. The Applicants seek an extension of the six month period within which to reach a final decision on these applications.
Now that the Sheriff has highlighted the real reason for the non-compliance of the 1982 act we can put all the other council excuses into perspective.
In the six months period the council had to determine these applications from November/ December 2004 onwards, all they managed to accomplish was a criminal evidence check. This resulted in one business member being disqualified from the application list but nothing further was accomplished or indeed considered in the whole six-month period.
The reason for this is that the council had no evidence before them to support their policy of restriction. Making a decision within the statutory time frame allowed by law would have meant the council either refusing the licenses while not knowing if demand did or did not exist under both Coyle and Dundee or reluctantly granting the licenses.
By not addressing the licensing applications in the six-month time frame allowed by law and seeing as they only achieved the simple task of completing background checks in that six-month period, the council in my opinion has demonstrated bad faith. They were obliged to expedite the applications in a reasonable time frame but all they did was orchestrate matters in such a way as to deny the rights of the license applicants under sections 3.1 and 10.3 of the 1982 act.
Coyle is the precedent that insists a licensing authority must consider the application when it falls at the door of the licensing authority, that judgement was re enforced in Dundee. In my opinion I understand the courts to be saying "that it matters not what evidence the council does not have available to it at the time the application falls due, "they have to make a decision on the evidence that is available to them at the time".
Under those circumstances and considering the systematic delaying tactics demonstrated by the council, it is highly debatable if the Appeal court would interpret the facts in the same way Sheriff Mackie did when she looked through her rose coloured glasses.
The historical background as to why Edinburgh council limits numbers is immaterial, the appeal for an extension of time should be based on the reasons why Edinburgh council failed to carry out their statutory duty within the allotted time frame. The Sheriff should have addressed herself to these reasons in light of section 10.3 and sections 3.1 of the 1982 act and in particular the references made in the Coyle case by Lord Rodger. The Sheriff failed to consider or understand that her first duty was to assess the reasons for the delay and if the council had acted in bad faith. The question she had to answer is "could the council have made a decision in the time frame allowed by law" regardless of what that decision might be? The answer to that is in the affirmative, the council could have made a decision but chose not too.
The sheriff then had to ask herself "that under those circumstances should the appeal be allowed" even though the council may have acted in bad faith? Well it might come as a surprise to some but under the 1982 act the Sheriff can allow the appeal, even though she believes the council may have acted in bad faith or prevaricated in its judgement.
It would seem to me that 3maxblack were not only up against Edinburgh city council they were also up against Sheriff Mackie.
If I had the finances I would appeal all the way to the higher court and hope they would see it my way but it must be a financial nightmare for those involved in 3maxblack and no one would blame them for backing out now.
Regards
JD
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FAQ
not unless everyones gonna double shift thier own vehicles by themselves 