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Coyle v. City of Glasgow Council

24 June 1997

Representation

WILLIAM ANTHONY COYLE AND GREGORY CAB COMPANY, Appellants (Respondents)-- Skinner.
CITY OF GLASGOW COUNCIL, Respondents (Appellants)--Agnew of Lochnaw, QC.

Licensing--Taxicabs--Taxi operator's licence--Application for new licence following failure to renew timeously--Refusal on ground that no significant unmet demand--Licensing authority having policy limiting number of taxi licences--Whether authority obliged to satisfy themselves at the time of considering application whether number in policy still applicable as being sufficient to meet demand--Whether licensing authority erred in refusing application--Civic Government (Scotland) Act 1982 (cap 45), sec 10(3)


FN1 Section 10(3) of the Civic Government (Scotland) Act 1982, as amended, is as set forth in the opinion of the court, infra--Ed.

Section 10(3) of the Civic Government (Scotland) Act 1982 enacts that, for the purpose of limiting the number of taxis licensed by it, a licensing authority may refuse to grant a taxi licence if, but only if, it is satisfied that there is no significant unmet demand for the services of taxis in its area.

In terms of that subsection a licensing authority had taken a policy decision which provided for a restriction on the number of taxi licences granted by it to 1,428.

The respondents had held a taxi licence for a number of years but, due to illness of the first respondent's mother, had failed timeously to renew it. In those circumstances, the respondents were obliged to apply for a new licence. The licensing authority refused the application on the grounds both that the policy existed and that the number of licences contained in the policy had been issued at the time of the application.

They also indicated that the respondents had not, in any way, challenged the policy decision. The sheriff allowed an appeal by the respondents. The authority thereafter appealed to the Court of Session.

Held (1) that the use of the phrase 'if, but only if' in sec 10(3) emphasised how tightly the authority's discretion to refuse an application was drawn and that the use of the present tense throughout the condition showed that the authority's assessment had to be made in relation to the situation at the time when the application fell to be considered, so that at that time the authority had to be aware of the current demand for the services of taxis and to be satisfied that there was no significant unmet demand for those services; (2) that there was nothing in the authority's decision to suggest that they had applied their minds to the question of what the demand for taxis was in their area as at the date of the application and unless they had checked that position, they could not know whether the figure still accurately reflected the number of taxis needed to meet the demand so that, when they took their decision, the authority had no proper basis for being satisfied that there was no significant unmet demand for the services of taxis in their area and were, accordingly, not entitled to refuse the application; and appeal refused.

Observed (1) that the fact that the respondents did not challenge the figure imposed by the policy was an irrelevant factor since before the committee could use that figure as a yardstick for refusal to grant a licence, they themselves required to have a proper basis for considering that the number of licences which had been issued meant that there was at that time no significant unmet demand for taxi services and the absence of the challenge did not affect that requirement; and (2) that it was not impracticable for the authority to consider the policy at every meeting for from time to time the authority carried out an exercise to determine the level of demand for taxis in their area and where a figure had been determined in that way, all that was required was that the matter should be kept under review by an official who *372 had the information to judge whether demand had increased since the matter was last considered.

WILLIAM ANTHONY COYLE AND GREGORY CAB COMPANY appealed to the sheriff against the refusal of the City of Glasgow Council to grant them a new taxi operator's licence, the applicants having failed to renew their licence timeously.

At advising, the sheriff allowed the appeal and remitted to the licensing authority with a direction to grant the application. The authority appealed to the Court of Session. The cause called before the First Division, comprising the Lord President (Rodger), Lord Prosser and Lord Cowie for a hearing on the summar roll.

At advising, on 24 June 1997, the opinion of the court was delivered by the Lord President (Rodger).

OPINION OF THE COURT--The appellants are the City of Glasgow Council who are the licensing authority for the taxis in their area under the Civic Government (Scotland) Act 1982. Their licensing function has been delegated to a sub-committee ('the committee'). The respondents are Mr William Anthony Coyle and the Gregory Cab Company who for many years held a taxi licence numbered 733. This licence expired on 31 January 1996.

To prevent it expiring the licence should have been renewed before that date, but because of stress due to his mother's illness Mr Coyle did not renew it in time. On 1 February the respondents tried to lodge an application for renewal, but this was refused and they were therefore left with no alternative but to apply for a new licence.

This application was refused by the committee, but the respondents appealed to the sheriff who allowed their appeal and granted the licence. The appellants appealed to this court on a number of grounds, but we need consider only one of them.

Section 10(3) of the Civic Government (Scotland) Act 1982 as amended provides: '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 ...'

The committee operate a policy in determining applications for taxi licences. In broad terms the committee will not, except in exceptional circumstances, grant a licence when they have already issued the number of licences which is sufficient to meet the demand for the service of taxis in their area.

The committee's position was explained to Mr Coyle in a letter from the depute Town Clerk dated 29 March 1996: 'The sub-committee when considering the application, intend to take into account (1) a decision made at a meeting of the licensing committee on 12 February 1991 that for the purposes of sec 10(3) of the Civic Government (Scotland) Act 1982 and without prejudice to the consideration of all taxi licence applications on their merits 1428 remained the number of taxi licences considered necessary to meet the demand for the services of taxis in the district but that nevertheless there would be no significant unmet demand for services of taxis in the district until the number of taxi licences fell below 1418;

(2) the fact that at present 1428 licences have been issued ...' The committee's refusal of the respondents' application was based on the fact that 1428 licences had already been issued; that this met the demand for taxi services and that there were no exceptional circumstances which would justify granting the respondents' application.

This emerges from the letter dated 24 April 1996 from the appellants' Director of Legal Services in which he gave the committee's reasons for refusing the respondents' application. He explained that the committee took account of the matters set out in (1) and (2) and the submissions made to them by the agent representing the respondents.

The matters set out in (1) and (2) were described in precisely the same way as in the letter of 29 March. The letter went on to say: 'As stated above the application was considered having regard to the said decision of 12 February 1991 to limit the number of taxis operating in the district in terms of said sec 10(3). In terms of that subsection the licensing authority are entitled to refuse the grant of a new taxi licence for the purpose of limiting the number of taxis if they are satisfied that there is no significant unmet demand. As stated above the number of taxi licences issued at the time of consideration of this application was 1428.

Mr Kelly on behalf of the applicants did not, in any way, challenge said decision of 12 February 1991 at said meeting. Accordingly the sub-committee considered they were entitled to refuse this application in terms of said sec 10(3).' The Director went on to explain that the committee had, however, proceeded to consider the particular circumstances of the respondents' application, but that they had reached the view that they were not exceptional.

He concluded: 'The licensing authority do not therefore accept that the applicants' situation in this case can be considered in any way "exceptional" such that a new licence should be granted to them in the face of said decision of 12 February 1991. If a new taxi licence was granted each time such circumstances arose, the licensing authority, at a conservative estimate would add approximately six licences per annum to the said limit of 1428.

Given that this limitation which the licensing authority are entitled to operate in terms of said sec 10(3) is based on the perceived demand for taxis in the area, such a limitation would soon become totally untenable if the licensing authority did not take a strict view of "exceptional" personal circumstances.'

The terms of the decision letter show that the figure of 1428 licences which had been arrived at in the decision of 12 February 1991 was central to the committee's decision to refuse the licence in terms of sec 10(3) of the Act. Counsel for the appellants also explicitly accepted that the only basis for refusal was sec 10(3) and that apart from that the appellants would have been bound to grant the respondents a licence.

Section 10(3) gives the committee a discretion to refuse to grant a licence 'if, but only if, they are satisfied that there is no significant demand for the services of taxis in their area which is unmet'. Two things stand out. First, the use of the phrase 'if, but only if' emphasises how tightly this discretion is drawn.

Secondly, the use of the present tense throughout the condition shows that the committee's assessment must be made in relation to the situation at the time when the application falls to be considered, in this case 10 April 1996. In other words when making their decision the committee required to be aware of the current demand for the services of taxis and to be satisfied that there was no significant unmet demand for those services.

The sheriff made the following finding in fact (19): 'In reaching their decision the respondents [ie the committee] took into account the decisions made in 1991 that the number of taxi licences considered necessary to meet the demand should remain at 1,428. They did not satisfy themselves at the time of considering the application whether it is still applicable as being sufficient to meet the demand.'

If the terms of the decision letter are examined, they confirm the sheriff's finding. The committee simply refer to the decision of 12 February 1991. There is nothing whatever in the letter to suggest that the committee had applied their minds to the question of what the demand for taxis was in their area in April 1996.

All that they seem to have done is to refer to the number in the decision of 12 February 1991. But that is simply an historic figure, which may or may not have represented the number required to meet the demand by April 1996. Unless the committee had checked the position, they could not know whether the figure still accurately reflected the number of taxis needed to meet the demand. Counsel for the appellants expressly conceded that there was nothing in the letter or elsewhere in the case which gave the slightest indication that the committee had reconsidered the figure at any time since 1991.

In our view therefore there is nothing to show that, when they took their decision, the committee had any proper basis for being satisfied that there was no significant unmet demand for the services of taxis in their area. That being so, the committee were not entitled to refuse the respondents' application under sec 10(3).

There is a particular passage in the Director's letter which suggests that the committee were approaching the matter from the wrong angle. One of the points which he makes against the respondents is that their agent 'did not challenge said decision of 12 February 1991'. But the fact that the agent did not challenge that figure is irrelevant. Before the committee could use that figure as a yardstick for refusing to grant a licence, they themselves required to have a proper basis for considering that the number of licences which had been issued meant that there was at that time no significant unmet demand for taxi services. The absence of challenge did not affect that requirement.

In his note the sheriff reaches a similar conclusion: 'It is clear that the respondents are entitled to set an optimum number for taxi licences and that figure has been set at 1,428 since 1991. However it is clear from the line of authorities that the number set is only a guidance and the committee must review the position when they consider an individual application.

In other words on 10 April 1996 the committee had to consider the position and satisfy itself whether 1,428 is still applicable as being sufficient to meet the demand. There is no indication that the committee indulged in any such consideration. They seem to have proceeded on the basis that the decision made in 1991 was binding and they did not review the position when considering the present application.

They applied the 1,428 policy as a rigid one.' 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 sec 10(3) since they will not know whether the existing number of licences is sufficient to meet the increased demand.

Counsel for the appellants accepted that, if in the circumstances the committee were not entitled to be satisfied that there was no significant unmet demand for taxi services, they had no option but to grant the licence. When he allowed the appeal, the sheriff granted the licence. In this situation that was the correct decision. We shall therefore simply refuse the appeal.

Representation

Allan McDougall & Co (for Hughes McVey Quar, Glasgow)--Simpson & Marwick, WS.

The Court refused the appeal.