Taxi Driver Online

Yet another case that pre dates the 1982 act.
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*43 Hamilton District Council v Johnston And Kerr Sheriff Court of South Strathclyde, Dumfries and Galloway at Dumfries

20 October 1980

1981 S.L.T. (Sh. Ct.) 43( SheriffA. M. Bell)

20 October 1980

Local government—Licensing of hackney carriages—Alterations to statutory regulations requiring confirmation by sheriff—Whether discretionary power to fix licensing fees appropriate—Burgh Police (Scotland) Act 1892 (55 & 56 Vict., c. 55), ss. 270 and 271 as amended by Local Government (Scotland) Act 1973(c. 65), s. 229.

Section 270 of the Burgh Police (Scotland) Act 1892 as amended by s. 229 of the Local Government (Scotland) Act 1973 empowers islands and district councils to license hackney and other carriages let for hire within the district. A district council applied to the sheriff under s. 271 of the said Act as so amended for approval of alterations in the regulations contained in Sched. V of the said Act as so amended governing the said licensing. One of said alterations allowed the council complete discretion to fix the level of fees payable for said licensing. The respondents representing the licensees opposed said alteration, contending that there should be some limitation on the local authority's power to "fix fees".

Held, that while a licensing authority should not be tied down to a specific scale of fees, it should not as a matter of principle be allowed unfettered powers to fix fees; amendments to altered regulations allowed to permit the authority to charge fees “sufficient to meet the direct and indirect costs” resulting from the application for licensing; and amended alterations to said regulations approved.

*44

Hamilton District Council applied to the sheriff under s. 271 of the Burgh Police (Scotland) Act 1892 as amended by s. 229 of the Local Government (Scotland) Act 1973 for approval of alterations made to the regulations contained in Sched. V of said Act governing the licensing of hackney and other carriages within the district. Joseph Johnston and Alexander Kerr representing the Joint Taxi Trade Committee for Hamilton and Blantyre opposed the application insofar as the said altered regulations would allow the council complete discretion to fix the fees payable for said licenses.

On 20 October 1980 the sheriff allowed the petition to be amended, inter alia, by deleting the words “and such fees as may be prescribed by the District Council from time to time” and substituting therefor the words “a fee which is in the District Council's opinion sufficient to meet the direct and indirect costs which it may incur as a result of the requisition” and petition approved.

The Sheriff (A. M. Bell)

This is an application under s. 271 of the Burgh Police (Scotland) Act 1892 (which I shall call “the 1892 Act”) for approval of alterations to regulations made by Hamilton District Council with respect to hackney carriages. The position is that with regard to hackney carriages the 1892 Act provides that the regulations in Sched. V thereof are to be observed but that such regulations may be altered by the magistrates, with the approval of the sheriff. The magistrates of the burgh of Hamilton at their meeting held on 30 April 1974 altered to some extent Sched. V, and their alterations were approved by the sheriff of Lanarkshire at Hamilton on 10 July 1974. Paragraph 2 of Sched. 28 to the Local Government (Scotland) Act 1973 (which I shall call “the 1973 Act” ) amended the 1892 Act by substituting for the word “magistrates” in s. 271 the words “islands or district council”. By the Burgh Police (Scotland) Act 1892 (Application of Provisions) (Hamilton District Council) Order 1979, the Secretary of State for Scotland extended ss. 270 and 271 of and Sched. V to the 1892 Act throughout the area of Hamilton District Council. On 2 June 1980, the petitioners made certain further alterations to the regulations contained in Sched. Vof the 1892 Act and this is an application for the approval of these alterations.

Sections 270 and 271of the 1892 Act, which as amended are still in force, provide: “270. Hackney carriages to be licensed.The magistrates may from time to time licence to ply for hire within five miles from the principal post office of the burgh such number of hackney coaches, omnibuses, or carriages of any kind or description, adapted to the carriage of persons, as they shall think fit, and they shall also licence all other carriages let for hire within the burgh. 271. Regulations for hackney carriages. With respect to hackney carriages the regulations contained in Schedule V of this Act shall be observed, but such regulations may be altered by the magistrates, with the approval of the sheriff” . Schedule V contains the regulations for hackney carriages.

Section 229 of the 1973 Act provides, so far as relevant to this application, as follows:

“(1) The Burgh Police (Scotland) Acts 1892 to 1911 shall cease to have effect at the end of 1979, and until that time those Acts shall have effect subject to the amendments set out in Schedule 28 to this Act, to the provisions of this section and of any order made thereunder. (2) Subject to subsection (3) below, the said Acts of 1892 to 1911 shall continue to apply in those areas and to those things and persons in which, to which and to whom they at present apply. (3) The Secretary of State may by order provide for the extension of any provision of the said Acts of 1892 to 1911 to such areas, things and persons as he may think fit, and, without prejudice to that generality, any such order may (a) extend the provisions throughout a new local government area”.


As I have mentioned I was referred to para. 2 of Sched. 28 to the Act of 1973:

“2. In the provisions set out in the following table, for the words ‘magistrate’or ‘magistrates’, in each place where either of them occurs, there shall be substituted the words ‘islands or district council’ … . Sections 270 to 272 [of the Burgh Police (Scotland) Act 1892]”.


In order to complete the account of the relevant legislation to which I was referred I should say that I was referred to two further Acts, the first being the Dangerous Wild Animals Act 1976as follows:


(2) A local authority shall not grant a licence under this Act unless an application for it — … . (e) is accompanied by such fee as the authority may stipulate (being a fee which is in the authority's opinion sufficient to meet the direct and indirect costs which it may incur as a result of the application)”



I was finally referred to the Local Government (Scotland) Act 1978 as follows:

“5. The repeal of — (a) the Burgh Police (Scotland) Acts 1892 to 1911… which by virtue… of — (i) subsection (1) of section 229 of the said Act of 1973 … falls to take place at the end of 1979 shall be postponed until the end of 1982 and accordingly, in each of the said subsections, for the words ‘1979’ there shall be substituted the words ‘1982’.”


Solicitor for the petitioners and the respondents agreed that there was no necessity for me to hear evidence. Solicitor for the petitioners opened his submissions by pointing out that the issue between the petitioners and the respondents was a narrow one. All that was between the parties was that the respondents did not wish the fees to be determinable in the discretion of the petitioners. The whole episode, he said, began when an application was made by the respondents to the petitioners in an effort to see if the annual inspection given to each hackney carriage could be modified so that that inspection included an exemption from the requirement to pass a Ministry of Transport test. This matter was he said taken up by the petitioners with the police *45 and the Department of Transport. As a result of this the Department of Transport had been prepared to accept that the granting of a licence in respect of hackney carriages and private-hire cars by the petitioners in accordance with certain procedures set out in a communication to the department was conditional upon the passing by the vehicle of an annual test within the meaning of the Motors Vehicle (Test) Regulations 1976(as amended). The result is that as long as the annual test (which is carried out on behalf of the petitioners by the police) falls within the definition in these last-mentioned regulations, no separate test would be required before the issuing of a test certificate for the vehicle. As regards the matter of fees, I was informed that the petitioners took the view that they as the licensing authority should control the level of fees. Solicitor for the petitioners indicated that it was his understanding that the police would charge the petitioners about £10 for a full inspection. He argued that in view of the changed economic circumstances Parliament had moved from the original idea of laying down specific fees towards the idea of leaving such fees to be determined by the licensing authority and indeed have moved further towards the idea of requiring the licensing authority to recover the direct and indirect costs caused by running the licensing system from the fees. For example, he referred to s. 1 (2) (e) of the 1976 Act. He further referred to the draft bill contained in the code of civic government proposed by the working party in terms of the 1973 Act. Clause 21 of the draft bill required a licensing authority to charge such reasonable fees as they might determine in respect of licensing matters and in determining the amount of the different fees, provided that the licensing authority should ensure that from time to time the total amount of fees receivable by the authority was reasonably sufficient to meet the expenses of the authority in exercising their licensing functions.

I indicated that I could see the force in the solicitor for the petitioners' submissions that the licensing authority should not be tied down to a specific scale of fees, particularly having in mind the fact that Parliament had apparently accepted in other cases that this was not appropriate. It appeared to me however essential that there be some limitation on the power to fix fees. In saying this I emphasise that I am not suggesting for one moment that the petitioners would in fact exercise their powers to fix fees in any other than a responsible manner. But as a matter of principle I am against a local authority having unfettered powers to fix fees. This as I understand the matter is essentially the objection of the respondents.

It is easy to understand why Parliament has moved towards requiring licensing authorities to charge fees sufficient to meet the direct and indirect costs as a result of the application. After hearing my views the solicitor for the petitioners suggested that he be allowed to amend the alterations to the effect of defining the fees which the licensing authority would be able to charge by reference to such direct and indirect costs. This, if I may say so, appears to me to be entirely appropriate.

It is now clear that the duty of the sheriff in approval of bye-laws under the former s. 318of the 1892 Act, to which I equiparate the approval of alterations to regulations under s. 271 of the 1892 Act, is not limited to the consideration of the legal validity of the bye-laws. As was made clear in Glasgow Corporation v. Glasgow Churches' Council, 1944 S.L.T. 317; 1944 S.C. 97 the function of the sheriff is to decide whether what is proposed is reasonable and expedient in the circumstances. I am prepared to take upon myself the responsibility of allowing an amendment in the terms suggested by the solicitor for the petitioners and of approving the alterations to the regulations in their amended form. The language of s. 271 does not appear to me to prevent me taking this course, which is convenient in the circumstances. I allow this however only because in my opinion the effect of the amendment is to restrict and not to enlarge the powers given under the alterations and had an amendment been sought the effect of which would have been to enlarge the powers, then I would not have been prepared to allow amendment at least without further advertisement. Although they refer to procedure for confirmation of bye-laws under a different section I have found the cases of Rothesay Town Council (1898) 14 Sh.Ct. Rep. 189 and Provost of Dundee (1913) 29 Sh.Ct. Rep. 49of assistance in this connection.

Solicitor for the petitioners moved me to allow expenses. I understand it is not the practice to award expenses in an application for approval of bye-laws and in any event I would not think it appropriate in this case to award expenses either way.

RepresentationSolicitor for the Petitioners, A. Moore.—For the Respondents, Parties.
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