Taxi Driver Online

Ingram v Aberdeen District Council

No 1

First Division

27 October 1995

1996 S.C. 1

27 October 1995

Representation

* ALEXANDER INGRAM, Pursuer (Appellant)—Benyon.
* ABERDEEN DISTRICT COUNCIL, Defenders (Respondents)—Liddell.

Licensing—Licensing committee—Taxi licence—Application for variation permitting displaying of roof sign on taxi—Discretion—Whether licensing committee erred—Airport taxi—Sheriff finding committee giving ‘due consideration’ decision—Civic Government (Scotland) Act 1982 (cap 45), sched 1, para 18(1) and (7)

1

The pursuer was granted an airport taxi licence by a licensing authority. Condition 16 of the licence set forth that: ‘The holder of this licence shall not display on the taxi any roof sign of any description, or anything or combination of things which might be capable of being construed as a roof sign, or as otherwise indicating that the vehicle is being operated as a taxi.’ The pursuer applied to the authority for variation of the condition in order to permit him to display a roof sign on his taxi. The licensing authority refused the application. In their decision letter, the licensing authority stated that the absence of a roof sign did not prevent the pursuer from performing a satisfactory service to the public on the basis that passengers leaving the airport looking for a taxi could readily identify the vehicle as being available for hire and other distinguishing factors, including the fact that there was a designated taxi rank available. The authority also felt that if empty airport taxis were seen travelling about the city easily identifiable as taxis their drivers might be tempted to accept city fares rather than return to the airport, with the resulting loss to city taxis. The pursuer appealed to the sheriff who held that the usual way in which a taxi was distinguished from an ordinary motor car was by means of a roof sign and sheriff refused the appeal and stated that the authority had sufficient opportunity to consider all the relevant facts, take them into consideration and were entitled on the facts to reach their decision, although perhaps all would agree with it. The pursuer appealed to the Court of Session.

Held (1) that the sheriff, having been satisfied that the authority had based their decision on an incorrect material fact, proceeded to give no reason why the appeal should be refused as the mere fact that the authority had given due consideration to their decision, could not mean that it was necessarily immune from any of the grounds set forth in para 18(7); (2) that as the sheriff *2 had found no good reason for the decision, this went some way towards a conclusion that it was unreasonable; and (3) that, having arrived at a finding which justified upholding the appeal, the sheriff had erred by not considering whether the authority had exercised their discretion in an unreasonable manner; and appeal allowed.

Alexander Ingram applied to the City of Aberdeen District Council for a variation of condition 16 of an airport taxi licence granted to him on 1 July 1992 which prohibited the displaying of a roof sign which would indicate the applicant's vehicle as being an airport taxi.

On 5 February 1993, the licensing committee of the council refused to grant the variation.

The applicant thereafter appealed to the sheriff.

The cause called before the sheriff who refused the appeal. The terms of the sheriff's judgment appear sufficiently from the opinion of the court.

The applicant thereafter appealed to the Court of Session.
Case referred to:

* Latif v Motherwell District Licensing Board 1994 SLT 414

The cause called before the First Division, comprising the Lord President (Hope), Lord Clyde and Lord Milligan for a hearing.

At advising, on 27 October 1995, the opinion of the court was delivered by Lord Clyde.

Opinion of the Court—On 1 July 1992 the respondents, the City of Aberdeen District Council, granted a taxi licence to the appellant. The licence was made subject to certain conditions. Condition 16 was as follows: ‘The holder of this licence shall not display on the taxi any roof sign of any description, or any thing or combination of things which might be capable of being construed as a roof sign, or as otherwise indicating that the vehicle is being operated as a taxi.’ In about January 1993 the appellant applied to the respondents for a variation of that condition in order to permit him to display a roof sign on his taxi. The precise terms of the appellant's original application for variation are not before us and his application was, for no evident reason, not made a production in the case. No objection appears to have been raised to that by the respondents in the proceedings in the lower court but it would have been proper for the document to have been lodged and it would have been helpful for the sheriff and for this court to have seen it. On 5 February 1993 the respondents, through their licensing committee, after hearing the appellant refused to grant the variation. The appellant thereafter asked for the reasons for their decision in writing. By letter dated 12 February 1993 the respondents replied to that request.

In that letter the respondents start by explaining the decision which they had earlier made to constitute Aberdeen Airport as a separate zone from the rest of the City of Aberdeen for licensing purposes. They state that the proprietors of the airport operate a permit system in terms of which only taxis in respect of which permits have been issued are permitted to uplift passengers within the airport. Non-permitted taxis may however set down passengers at the airport but are not allowed to pick up passengers there without the express authority of the airport company. The respondents then refer to the problems which have been experienced of an inadequate availability of taxis at the airport to serve incoming passengers. In an attempt to remedy that situation they had resolved that the airport should be consisted as a separate zone from the remainder of the City for licensing purposes so that taxis which were permitted to operate at *3 the airport should only operate there and that taxis not permitted to operate at the airport should only operate in the remaining areas of the city. Operation in this context is to be understood as the picking up of passengers for conveyance by taxi. The purpose of this zoning system was to ensure that the airport taxis would return to the Airport after each hire and to assist enforcement authorities and members of the public in differentiating between the taxis which operated in the airport and the taxis which operated in the remaining areas of the city. It was to assist further in this matter and to help in ensuring that airport taxis returned promptly to the airport without picking up fares in the city that the council had resolved to prohibit the display of roof signs on airport taxis.

The respondents continue in the letter of 12 February 1993 to set out the applicant's submissions to them as they had understood them. These comprised four separate points, the essence being the importance of identifying his vehicle as a taxi and his inability to do so without a roof sign. In the following paragraph, paragraph 10, of the letter the respondents set out the grounds for their decision in four paragraphs which correspond with the four particular submissions put forward by the appellant. They conclude that having regard to the foregoing considerations they had resolved to refuse the application.

The appellant was dissatisfied with this decision and appealed to the sheriff under para 18 of Sched 1 of the Civic Government (Scotland) Act 1982. He invoked in particular three of the heads detailed in para 18(7) of that Schedule, namely (b) that the respondents had based their decision on an incorrect material fact, (c) that they had acted contrary to natural justice and (d) that they had exercised their discretion in an unreasonable manner. By interlocutor dated 14 October 1994 the sheriff refused the appeal. The appellant has now appealed to this court. That appeal can be taken only on a point of law, in terms of para 18(12) of the Schedule. It is, accordingly, not for this court to open up the evidence or explore the facts of the case for ourselves. In the present case the appellant has tabled five grounds of appeal but these came to be reduced to two in number, the first relating to the complaint that the respondents had based their decision on an incorrect material fact and the other on the ground that they had exercised their discretion in an unreasonable manner. A separate ground which raised an issue whether the applicant's representative before the sheriff had been sufficiently heard by the sheriff was expressly departed from.

The first ground for the Committee's decision as set out in para 10 of their letter commences as follows: ‘That the absence of a roof sign on your vehicle does not prevent you providing a satisfactory service to the public on the basis that passengers leaving the terminal buildings at the airport looking for the services of a taxi can readily identify your vehicle as being available for hire having regard to its presence on the official taxi rank, which is clearly indicated as such by means of sign posting and an illuminated sign at the head of the rank, and also by the presence of a green licence plate at the rear of your vehicle ….’ The respondents go on to suggest other options for identification such as painting the vehicle in a distinctive colour, erecting or installing additional signs and personally escorting passengers from the airport buildings. As regards the carriage of passengers from outwith the airport which the appellant was permitted to do provided the fare had been pre-booked they suggested that the display of a roof sign was unnecessary as the arrival of the taxi would be expected. They also suggested that such passengers could in any event satisfy themselves as to the identity of the vehicle by *4 reference to the green licence plate at the rear and the identification badge worn by the driver.

The matter of the ready identification of the appellant's vehicle as a taxi at the airport was challenged by the appellant before the sheriff as incorrect in fact. Evidence was led before the sheriff on that point. In the course of his opinion the sheriff stated: ‘I was perfectly satisfied that the presence of a roof sign is the usual way in which a taxi (other than a ‘London’ taxi) is nowadays distinguished from an ordinary saloon motor car. There was ample evidence, all of which I accepted, that the airport taxis were not distinguished by members of the public as taxis simply because they did not carry roof signs indicating that they were taxis. This has caused numerous problems for airport drivers, not least in the dark when waiting for fares at the airport taxi rank, or waiting to pick up a customer at a hotel, or when cruising within the airport zone. I was left in no doubt that the presence of a roof sign would greatly improve the business of an airport driver and its absence may have caused him to lose business.’

Prior to this passage and leading up to it the sheriff considered the various alternative ways in which the respondents had claimed that sufficient identification was or could be secured short of a roof sign. So far as the designation of the taxi rank areas at the airport were concerned he discusses the inadequacy of that consideration as a matter of identification. While he does not in terms find that method to be insufficient his comments on it in the context of what follows may reasonably be taken as tantamount to such a finding. As regards the green licence plates which were required to be fixed on the rear of the vehicle the sheriff plainly did not accept that that was sufficient to enable the pursuer's vehicle to be readily identified as a taxi. He also rejected the idea that the pursuer's identification card or his taxi meter were sufficient to enable a member of the public reasonably to identify the vehicle as a taxi. Similarly a sticker which was produced portraying an aeroplane seemed in his view inadequate to convey the desired information to the public. While he did not discuss in his note the further ideas which the respondents have made it is clear that he regarded the roof sign as the principal and normal means of identification. Having thus canvassed these alternative suggestions which the respondents had proposed the sheriff, in the passage which we have already quoted, held that it was because of the absence of a roof sign that the airport taxis were not distinguished as taxis by members of the public.

Counsel for the appellant before us submitted that the sheriff had not asked the right question in relation to this head of the argument. But while the sheriff's note does not expressly focus and direct attention to this particular ground of attack, as detailed in para 18(7)(b) of the first schedule to the act of 1982, as the context for the view which he expresses, he has quite clearly answered the critical question in the passage to which reference has just been made.

Counsel for the respondents sought to argue that the sheriff had not made a finding in fact that the appellant's vehicle could not be adequately identified as a taxi and had accepted that there were other means of identification without necessitating the provision of a roof sign. In our view that is not a reasonable construction of the sheriff's note. The conclusion reached by the sheriff seems to us to be quite clearly to the effect that the other suggested means of identification were inadequate. The roof sign then became important and as matter of fact he found the absence of a roof sign to be the cause of airport taxis not being distinguished by members of the public.

*5

Counsel for the respondents also submitted that there was no error made by the committee when reference was made to the precise formulation which they give in their letter of the first ground put forward by the appellant in his application. This is stated by them in the letter as ‘that you were unable to provide a service because your vehicle was not recognised as a taxi’. Counsel submitted that the appellant had failed to establish the proposition that it was absolutely impossible for him to carry on his taxi service at the airport and on that matter of fact the committee had not erred. On this approach he also submitted that the sheriff's finding did not go so far as to uphold the appellant's proposition as formulated in that paragraph of the letter of 12 February 1993. But this approach is erroneous in that it involves too strict a reading of the terms of that letter. Plainly the complaint raised was, in the language used by the respondents themselves in answering the point, that he could not carry on a satisfactory service. The respondents found that he could, but what is critical is the basis on which they say they reached that view. That was: ‘on the basis that passengers leaving the terminal buildings at the airport looking for the services of a taxi can readily identify your vehicle as being available for hire …’.

Counsel for the respondents agreed that the findings-in-fact made by the committee in this part of their letter were matters of material fact. But the sheriff has found that on the material matter of identification the respondents were in error. Counsel also sought to escape from the effect of the sheriff's finding by arguing that the basis for the committee's decision was the provision of an adequate service to the public but that ignores the express statement of the respondents that the basis for their view of an adequate public service was their belief that the air passengers could readily identify the appellant's vehicle. That belief has been found to be erroneous.

Having been satisfied, as he clearly was, that the respondents had based their decision on an incorrect material fact the sheriff nevertheless did not uphold the appeal. Paragraph 18(7) of Sched 1 of the Act of 1982 states that he may only uphold an appeal if he finds one or other of the express grounds to be made out and accordingly he was, at the least, entitled to uphold the appeal. But he proceeded next to observe that the decision was not taken by the respondents without due consideration, adding that it would not have been a decision which he himself would have taken, that a roof sign was highly desirable and that he could see no good reason why a roof sign could not be designed which could distinguish airport taxis from city taxis. That however is no answer to the conclusion that the respondents proceeded on an incorrect material fact and gives no reason why, notwithstanding such an error, the appeal should be refused. The mere fact that the respondents gave ‘due consideration’ to their decision cannot mean that it is necessarily immune from any of the grounds set out in para 18(7) and that the sheriff found no good reason for the decision goes at least some way towards a conclusion that it was unreasonable. In the context of para 18(7)(b), that the decision was based on an incorrect material fact, the sheriff's observation about due consideration does not detract from the force of his finding that the respondents had materially erred in fact.

In the next paragraph the sheriff explores the ‘gravamen’ of the decision, which he describes as the respondents' fear that if empty airport taxis were seen travelling about the city easily identifiable as taxis their drivers might be tempted to accept city fares rather than return at once to the airport, with the resulting loss to city taxis and even warfare between the two groups of city and *6 airport taxi drivers. But that fear seems, if anything, to underline the illogicality of the decision rather than support it. The essence of the appellant's complaint about the decision is that there is loss to airport taxis because city taxis can be seen in the airport easily identifiable as taxis and tempted to accept airport fares rather than return at once to the city. This simply mirrors the fear on which the decision is said to be based. Furthermore the fear proceeds on the assumption that the airport taxis would become identifiable as taxis if roof signs were permitted. But the first ground of the respondents' decision is that they are at present identifiable without roof signs so that there is an inconsistency in the thinking. Counsel for the respondents sought to overcome this by pointing to the differences between identifying the appellant's vehicle as a taxi in the streets of Aberdeen and identifying his vehicle as a taxi while waiting on a designated taxi rank at the airport. But that difference is destroyed by the sheriff's evident view of the inadequacy of the designated taxi rank as a point of identification.

In his final paragraph the sheriff states the defenders had sufficient opportunity to consider all the relevant facts, took them into consideration and were entitled on the facts to reach their decision, although perhaps not all would agree with the decision. But this paragraph is in flat contradiction of his finding on the page before to the effect that the respondents had proceeded on an incorrect material fact. The sheriff, in our view, has erred in law in proceeding on the general basis that the decision was a matter for the respondents to determine and in failing to give effect to his own finding-in-fact that the respondents had proceeded on an incorrect material fact. Having arrived at a finding which justified upholding the appeal he erred in failing to follow it through to the only valid conclusion to which it led.

Counsel for the respondents submitted that even if the sheriff had held that the decision was based on an incorrect material fact nevertheless he had a discretion whether or not to uphold the appeal. It was not disputed before us that such a discretion existed. But even if there can be cases where a decision is flawed on one or other of the grounds set out in para 18(7) but the circumstances are such as to make it inappropriate to interfere with it, that cannot be a usual course and if it was ever to be taken one would expect to find clear and convincing reasons stated to justify such an exercise of discretion. Counsel for the respondents submitted that the closing paragraphs of the sheriff's note were to be understood as indicating the reasoning for his exercising his discretion to let the decision stand. We cannot read the sheriff's note in that way. There is nothing to show that he was deliberately or consciously exercising such a discretion nor even that he was dealing expressly with a discretion which he identified as open to him under the paragraph in question. In any event what is contained in those paragraphs would be quite inadequate to serve as a proper ground for refusing the remedy once he had recognised that it was open to him to grant it.

The second chapter of the appellant's argument before us was to the effect that the sheriff had failed to consider whether the respondents had exercised their discretion in an unreasonable manner. Counsel referred in this connection to the case of Latif v Motherwell District Licensing Board. Certainly it is not evident from the sheriff's note that he asked or answered this question, although it was plainly raised in the appeal before him. On the contrary he appears to have accepted the illogicality of the respondents' reasoning which we have already *7 noted in relation to the penultimate paragraph of his note to the effect that the respondents claimed that the appellant's vehicle was already identifiable as a taxi but based their prohibition of the roof sign on the fear that such a sign could make the vehicle identifiable as a taxi. A decision reached on that basis is in our view unreasonable and if this passage was to be understood as relating to the reasonableness of the decision, the sheriff's view on that aspect would be erroneous.

Counsel for the respondents submitted simply on this head of the case that their decision could not be described as unreasonable since one other licensing authority, Edinburgh District Council, had prohibited roof signs on airport taxis and it could not then be said that the Aberdeen authority had done something which no other authority would have done. Certainly it seems that the respondents were to some extent influenced in their original decision to impose the prohibition as a condition of the licences of airport taxis by an understanding of the system already at that time adopted in Edinburgh. But this was not how the respondents defended their position on the matter of reasonableness in their pleadings and this argument, even if it is not novel to the appeal, involves reference to facts outwith what counsel for the respondents himself identified as the scope of the dispute, namely the submissions by the appellant before the respondents and the written reasons by them. But even if this line of argument is to be examined it has to be noticed that the fact that Edinburgh District Council has imposed the prohibition in Edinburgh does not necessarily mean that it was reasonable for Aberdeen District Council to impose it in Aberdeen. The question is not whether the imposition of the prohibition is something that no authority would do but whether the imposition of the prohibition in Aberdeen is something that no reasonable authority in the position of the Aberdeen District Council would do. Furthermore, one critical distinction between the position in Aberdeen and the position in Edinburgh emerges from the case in the fact, which was noted by the sheriff, that in Edinburgh the taxi rank is adjacent to the terminal doors and obvious as such. Even if the prohibition imposed with the reference to Edinburgh Airport was reasonable, it does not follow that the decision of the respondents was reasonable.

In our view, accordingly, the sheriff here has erred in law and the appeal should be allowed. It follows that we should reverse the decision made by the respondents on 5 February 1993. The question then remains what is to be done with the original application. If the present appeal was allowed it was not suggested that condition 16 could be justified on any ground not raised in the present case. It was recognised that in that event a variation should be made. It should be a matter for the respondents to determine what alternative formulation would be appropriate. It was agreed between the parties that we should, on allowing the appeal and reversing the decision of the respondents, remit the case to the sheriff to direct the respondents to vary condition 16 of the appellant's licence in order to make provision for the presence of a roof sign on the taxi subject to such conditions as to its design and method of operation as the respondents may consider appropriate. We shall accordingly make an order in those terms.
Representation

* Drummond Miller, WS (for Frank Lefevre, Aberdeen)—Bennett & Robertson.

The Court allowed the appeal.
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