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Using the wording quoted of the old section 10 (3) I found this...........
REPORT TO: LICENSING COMMITTEE - 28TH JUNE 2001
REPORT ON: TAXI LICENCES AND THE WAITING LIST
REPORT BY: DIRECTOR OF SUPPORT SERVICES
REPORT NO: 432-2001
1.0 PURPOSE OF REPORT
1.1 To consider the position with regard to the request from the Trade to grant licences to persons not on the waiting list, to consider the implications for and operation of the waiting list.
2.0 RECOMMENDATION
2.1 The Committee's instructions are requested.
3.0 WAITING LIST
3.1 Prior to the Civic Government Act of 1982 being introduced in 1984 the Committee dealt with taxis under the Dundee Corporation (Consolidated Powers) Orders 57/69 which gave them the power to determine the number of taxi licences in force. The limit set was 270.
3.2 Following the introduction of the Act in 1984, the Licensing Committee was obliged in terms of Section 10(3) to refuse the grant of any new Taxi Licences where this "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." Once the number of licences had risen from 270 to 324, the Committee decided that to grant any more licences would have such an adverse effect and, instead, for the first time, applicants were invited to go on a waiting list. If any applications for new licences had come before it, the Committee would have been legally bound to refuse these since Section 10(3) was a mandatory ground for refusal.
3.3 In the following years the number of private hire cars rose steadily (as there are no powers available to limit the number of private hire licences) and it became apparent that there was a demand for such services. Having regard to this the Committee, in 1986, decided to abolish the limit and let the market decide the level of taxis operating in the City.
3.4 The result of this was that virtually all private hire licence holders applied for taxi licences and surrendered their private hire car licence leading to the number of taxis in the City reaching almost 800.
3.5 The Trade were making representations to members that there were too many taxis and that no more licences should be granted. By this time Section 10(3) had been amended by the Transport Act 1985. The new version empowers licensing authorities to refuse applications for new licences "if, but only if, they are satisfied that there is no significant demand for the services of taxis in their area which is unmet."
3.6 In view of this the Committee in April 1992 decided to commission a survey to establish the demand for taxis and in particular the level at which there would be no significant unmet demand.
3.7 The survey was carried out in 1992 by a company called Technecon and it indicated that there was no significant unmet demand in the City for taxis. The Committee agreed that no further licences be issued, and that the position be reviewed when the number of licences fell below 600. The Committee further agreed that those applicants who had applications pending be permitted to withdraw their applications, whereupon the fee would be refunded, and their names would be included on a waiting list by order of date of application. At that time there were 770 taxis in the City and over the next 8 years the number gradually fell to below 600 whereas the number on the waiting list rose to over 400.
3.8 In 1998 in the case of Coyle -v- City of Glasgow Council it was held that a Licensing Authority could not use a historic survey to control the number of taxis operating in their area as the information relied on to assess demand was out of date. The Technecon survey was by then 6 years old and many changes had occurred in Dundee in the interim. This meant that a court looking at Dundee's survey would be liable to find that it could not be relied upon as evidence that there was no significant unmet demand for taxis in the city.
3.9 Discussions were held with the Trade resulting in a further survey being commissioned. On 29th June 2000, the results of the survey were reported to and accepted by the Committee resulting in the Committee resolving that the number of taxis operating in the City be fixed at 507 and that should the number fall below this figure then the first applicants on the waiting list would be invited to apply for licences.
4.0 PAST PRACTICE REGARDING WIDOWS
4.1 Following the death of a licence holder, the licence is deemed granted to the executor and remains in force for a period of three months and then expires. The Licensing Committee can however on application extend this period to allow the estate to be wound up.
4.2 In the past the Committee have granted applications for new licences from widows until 31st May following the date of grant. This has been perceived by the Trade as a transfer of the deceased person's licence to his widow. A taxi licence cannot in law be transferred. The widows have simply been granted new licences in their own right.
4.3 The majority of these applications were dealt with in private. However it must be said that the Trade knew of that practice and in some cases widows were represented by the DTOA.
4.4 None of the decisions taken have been challenged. This may be due to the fact that they were considered in private or that there was a general acceptance of the practice by the Trade.
4.5 While to some extent these decisions may have been in the public domain it is unlikely that all of those persons on the waiting list would have been aware of them. Following the adoption of the survey on 29th June 2001 it is likely that people on the waiting list would challenge any such practice in the future.
4.6 The 1992 survey did not fix a limit nor indicate that waiting list applicants should be given priority. This would have meant that a person on the waiting list would not have had the same legitimate expectation of being given a priority over those not on the waiting list as they now do. The prospects of success in challenging any of these decisions would not have been as great as they now will be.
4.7 Had someone on the waiting list successfully challenged a decision of the Licensing Committee the Committee would thereafter have been unable to rely on the survey and to maintain the limit. The prospect of successful legal challenge in these circumstances has been greatly increased by the adoption of the June 2000 survey.
5.0 THE PRESENT POSITION - THE CURRENT SURVEY
5.1 The Committee has accepted the June 2000 survey as evidence that the demand for taxi licences in the city is met at the optimum number of 507 and that unless licences fall below that level there will be no significant unmet demand in the city.
5.2 The Committee also resolved that should the number fall below 507 the person at the top of the waiting list would be invited to apply for a licence. This has created a legitimate expectation on the part of those on the waiting list and entitled them to a priority in having their application considered in accordance with their position on the list as well as over those not on the list at all.
5.3 Notwithstanding that the ground for refusal on the basis of no significant unmet demand is discretionary, the Licensing Committee would require to apply the new survey findings consistently. As already narrated, effectively to ignore the limit in one class of application and seek to rely upon it in others would likely be regarded by the courts as unreasonable.
5.4 If the Committee did grant such an application, those on the waiting list might insist that their applications be considered by the Committee. If the Committee refused these applications, it is expected that on appeal the Sheriff would find no grounds had been established to support a refusal on the basis of there being no significant unmet demand. Having not applied the survey's findings for the widow when numbers were above 507, any decision to rely on the survey to refuse those on the waiting list may well be found to be unreasonable and contrary to natural justice. If the appeals were upheld, the Committee would have difficulty in refusing any licences on the grounds that there is no significant unmet demand. By rejecting the limit identified in the survey there would be a real risk that the Committee would no longer be able to restrict the numbers of taxi licences in the city.
5.5 If the Committee were to agree not to grant new licences to widows before the numbers fell to 507 but rather put them at the top of the waiting list, this would avoid the difficulties set out in paras 4.3 and 4.4. However, the Committee could be accused of acting in bad faith by relegating those originally at the top of the list to a lower position. The Committee resolved on 29th June that, should the number of taxis fall below 507, the person at the top of the waiting list would be invited to apply for a licence. This created a legitimate expectation as previously explained and such an expectation can and has formed the basis of legal challenges to the decisions and actings of public bodies. A court again may well find that the Committee had acted unreasonably and/or contrary to natural justice. If the courts did find against the Committee, once again the ability to restrict the number of taxi licences could be jeopardised.
5.6 The Trade have also requested that the Committee consider using its powers to vary the terms of an existing licence to effectively allow it to transfer to another person (e.g. widow), partnership or company. The powers to vary the terms of a licence do not allow for the substitution of a new licence holder for an existing one. The Civic Government (Scotland) Act, 1982 does not permit a licensing authority to transfer a taxi licence which is effectively what the Committee would be doing if it attempted to vary the licence in this way.
6.0 OTHER CONSIDERATIONS
6.1 The courts have stated that, when considering an applicant's fitness to hold a licence under the 1982 Act, it is irrelevant for a Licensing Authority to have regard to personal hardship and other personal circumstances (Rose -v- Falkirk District Council (1994)). Although members of the Licensing Committee may feel sympathetic to widows (etc), particularly regarding the loss of income from the operation of the licences, this is not a relevant consideration.
6.2 Since the first survey in 1992, the numbers of taxis operating in the city has been far in excess of the numbers below which new licences would be granted. Now, for the first time since then, the number of licences is just above the 507 level (509 at present). People on the waiting list for many years now have hope as well as legitimate expectation that their opportunity for a licence is in sight. If the Committee were to give preferential treatment to people not on the waiting list and for reasons of sympathy rather than legitimate licensing considerations, it may have an adverse affect on the credibility of the Committee. This would also attract adverse judicial comment and any appeals being upheld could lead to the abandonment of the limit on the number of licences. In addition to awards of expenses against the Council, another consequence of successful challenges could be the pursuit of claims for compensation for loss of prospective income.
6.3 If the Licensing Committee are minded to proceed in a manner which could impact upon the legitimate expectation of those currently on the waiting list, consideration should be given as to whether or not to consult these individuals before coming to a conclusion.
7.0 LIAISON COMMITTEE OF 17TH APRIL 2001
7.1 At the meeting of the Liaison Committee of 17th April 2001, a submission was made by an agent acting on behalf of the Dundee Taxi Owners' Association. Two specific proposals were made in the submission. Firstly, that a widow/partner of a deceased licence holder be allowed to apply for a new licence without having to go on the waiting list. Secondly, and as an alternative, the Committee could deal with these applications by means of the procedure for varying the terms of an existing licence contained in the 1982 Act.
7.2 In subsequent correspondence, the agent for the Dundee Taxi Owners' Association referred to the practices, policies and procedures of a number of other licensing authorities with regard to the grant of new Taxi Licences. Whilst a number of these authorities allow widows, partners and/or business associates to apply for new licences, only two also operate a waiting list. However, neither of these authorities made any resolution similar to that of this Committee of 29th June 2000.
7.3 It is considered that the mechanism of variation of the terms of a licence cannot be used effectively to transfer a licence for the reasons contained in Paragraph 5.6 above.
8.0 OPTIONS FOR THE COMMITTEE
8.1 The Committee wait until the numbers fall below 507 then consider applications from those on the waiting list according to their placement/position on the list. New applications from widows, partnerships and companies would be considered only when they reach the top of the list.
8.2 The Committee consider applications from widows, etc. as a priority above those on the waiting list irrespective of whether the number of taxi licences in operation has fallen to 507. If the Committee agrees to this then the risks to the maintenance of an upper limit of licences must be recognised. A successful appeal could result in the Committee not being able to rely on the survey and there would be no grounds to refuse any application for a licence on the basis of current demand. It would be extremely difficult, if not impossible, to justify the maintenance of the limit whilst at the same time exempting one particular category of applicant (ie widows).
This course of action poses a real risk to the ability to maintain a limit on the number of licences.
8.3 The Committee consider applications from widows, etc. only when the number of licences has fallen below 507 but before applications from those on the waiting list. Again, the Committee would have to accept the risks and possible consequences as detailed above.
Again any successful appeal would result in the implications detailed at paragraph 6.2 above.
8.4 The Committee reject the findings of the survey and consider all applications. This would abolish the waiting list and allow widows, etc. to have their applications processed without any delay. It would also potentially have an adverse effect on the streets and ranks in the city if there were too many vehicles. The market would then decide the level of taxis in the city. However, there are potentially adverse effects with this course of action including maintaining the quality of vehicles as the number of licences increase.
Signature
Date
Director of Support Services
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