Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT KIRKWALL

JUDGMENT

of

MUNGO BOVEY QC

in summary application by

JOHN DAVID WEBSTER

pursuer

Against

ORKNEY ISLANDS COUNCIL

defenders

COURT REF NO B37/10

Act: Herd

Alt: McDonald

Kirkwall, May 2011

The Sheriff, having resumed consideration of the cause:- allows the pursuer's appeal against the decisions of the defenders on 3 August 2010 to refuse the applications by the pursuer for (1) grant of taxi licences in relation to vehicles SF51 LGK, SB54 VSK and VN04 HMJ and (2) renewal of taxi licences in relation to vehicles SC53 WYU and SB06 JDU and reverses the said decisions; reserves meantime the expenses of the appeal.

NOTE

1       Mr Webster appeals against a decision of the Orkney Islands Council on 3 August 2010 whereby the defenders' Licensing Sub-Committee refused to grant the pursuer taxi licences in respect of three specified cars and refused to renew taxi licences in respect of two further vehicles.

2       Paragraph 5 (3) of Schedule 1 to the Civic Government (Scotland) Act 1982 (c 45), so far as material, provides that a licensing authority shall refuse an application to grant or renew a licence if, in their opinion the applicant is not a fit and proper person to be the holder of the licence or there is other good reason for refusing the application and otherwise shall grant the application.

3       Paragraph 18(7) of the Schedule provides that the sheriff may uphold an appeal under this paragraph only if he considers that the licensing authority, in arriving at their decision--

(a) erred in law ;

(b) based their decision on any incorrect material fact ;

(c) acted contrary to natural justice ; or

(d) exercised their discretion in an unreasonable manner

4       Paragraph 18(9) provides that on upholding an appeal under this paragraph, the sheriff may-

(a) remit the case with the reasons for his decision to the licensing authority for reconsideration of their decision ; or

(b) reverse or modify the decision of the authority,

5       I heard evidence on 21 and 22 March 2011 and submissions from the parties' solicitors on the latter date.

6       The defenders lodged an extract minute of the decision-making Committee on 3 August 2010
[1] and a statement of reasons dated 20 August 2010
[2].

7       After the pursuer's evidence, the defenders led Councillor RW Crichton who had been a member of the Committee on the relevant occasion and had contributed to the drafting of the statement of reasons.

8       After the evidence, Miss Herd moved me to allow the appeal and to reverse the decisions appealed against on the basis that:

(I) the defenders had erred in law in putting the onus on the pursuer to prove he was a fit and proper person in paragraph 39 of the statement of reasons;

(II) the defenders were wrong in law to take into account the comments by Northern Constabulary anent a prohibition notice at paragraph 32 of the statement of reasons;

(III) there had been no notice to the pursuer that his fitness was going to be considered by the Committee;

(IV) there was no basis in fact on which the Committee could have made the findings on which they based the conclusion that he was not a fit and proper person
[3]

(I) Onus

9       The first sentence of paragraph 39 of the reasons is: "The Committee determined that the applicant had failed to demonstrate to the Committee that the applicant was, in terms of paragraph 5(3) of Schedule 1 to the 1982 Act, a fit and proper person to hold such licences or that there was good reason to renew the licences."

10   Miss Herd relied upon Hamid v City of Glasgow District Licensing Board
[4] at paragraph 9 and Din v City of Glasgow District Licensing Board
[5] at the foot of page 366 and top of 367.

11   Miss McDonald, for the defenders, maintained that none of the materials demonstrate an error in law.

12   In my view, this ground is well-founded. Even apart from authority, the extent to which the reasons given by the Committee re-wrote the statutory test demonstrates the inversion of the onus. It follows that the licensing authority erred in law in arriving at their decision.

(II) the police comments

13   Paragraph 32 of the statement of reasons is in the following terms:

"Northern Constabulary were present in an advisory capacity only. Northern Constabulary advised that some of the matters referred to such a illegal tyres would have, if these had been brought to Northern Constabulary's attention, led to a prohibition notice being issued for the use of the vehicle concerned. Northern Constabulary had not objected to the applications under explanation that they were not aware of the results of the taxi inspection reports at that time."

14   The statement of reasons narrated a number of failings in the condition of the vehicles when presented for the inspection test that is a requirement of the applications made by the pursuer. In paragraph 25 one of the cars is said to have "back LH tyre illegal".

15   Although it wasn't explored before me, the reference to a prohibition notice appears to be to a notice issued under section 69 of the Road Traffic Act 1988 (c 52).

16   As Miss Herd accepted that it was acceptable to take into account the illegality of the tyre, I am unable to see what the significance was of the police comments which appear to follow from the condition of the vehicle.

17   I do not find any ground of challenge made out in this regard.

(III) lack of notice

18   Mr Webster was invited to the meeting of 3 August 2010 by a letter dated 22 July 2010. In a letter dated 28 July 2010
[6] it was stated:

"Please note that the information contained in the report regarding your various licence applications will be as undernoted." The letter then narrated the history of the pursuer's efforts to renew the licences of the five vehicles and the conditions they had been in when presented to the authorised garage for inspection prior to removal. For various reasons, three applications for renewal were late and treated by the defenders as fresh applications.

19   In addition, the letter contained:

(a) an indication that one vehicle had done 180 miles between failing its inspection on 11 June and representation on 15 June 2010
[7] and that on 22 July 2010 the Licensing authority received information that the vehicle had been being used on Friday and Saturdays despite the foregoing and that "...The caller has referred this matter to Northern Constabulary.
[8]"

(b) a statement in relation to a second vehicle that on 22 June 2010 the Licensing authority received information that this vehicle had picked up hires from cruise liners whilst not displaying either taxi signs nor plates on 18 June 2010 - three days after the vehicle's taxi licence had expired.
[9]

(c)   a statement relating to a third car that its licence expired on 15 June 2010 and the vehicle required to be off the road from 16 June 2010.
[10] The taxi plates were not returned until 22 June 2010
[11]. The vehicle had driven 282 miles between failing a test on 17 June and being represented on 5 July
[12]. On 22 June 2010 the Licensing authority received information that this vehicle had picked up hires from cruise liners whilst not displaying either taxi signs nor plates on 18 June 2010 - seven days after the vehicle's taxi licence had expired
[13]. On 22 July 2010 the Licensing authority received information that the vehicle had been being used on Friday and Saturdays despite the foregoing and that "...The caller has referred this matter to Northern Constabulary.
[14]"

(d) a statement that a fourth vehicle had driven 762 miles between failing a test on 7 July and being represented on 13 July, both dates being significantly after the expiration of the taxi licence in June.

(e) a copy of a letter of complaint from another taxi operator that the pursuer had operated taxis while unlicensed and a statement that the complainer had been invited to attend the meeting and might be given a chance to address them.

20   Miss Herd relied upon paragraph 4(1) of schedule 1 which provides that in considering an application for the grant or renewal of a licence, a licensing authority may make such reasonable inquiries as they think fit and include the results of these inquiries in matters they take into account, but where they intend so to include any of these results they shall notify the applicant of that intention.

21   Miss Herd said that this indicated a requirement on the licensing authority to give notice of an intention to consider the fitness ground.

22   In my view, this submission raises two distinct issues. It seems to me that the provision relied upon is a specific example of the general rule that a fair hearing involves notice of the case one has to meet. The question in this case is whether such notice is the content of the materials to be taken into account or whether it extends to the potential grounds on which an application may be refused.

23   Looking to the potential grounds for refusal, particularly "other good reason", it seems to me that what is important is not that the particular ground of refusal is identified but that the material to be relied upon by the authority is outlined sufficiently to give fair notice.

24   Of significance in this regard is the order of business at the meeting of 3 August
[15]. The pursuer's applications were the third and final item of business. Item 2 on the agenda was "Taxi and Private Hire Car Inspection".

25   Each of these items was accompanied by a report from the solicitor to the Council. Of the report relating to his applications
[16], only section 7 was included in the letter of 28 July from the defenders
[17]. As I have already indicated, this is introduced by the words: "Please note that the information contained in the report regarding your various licence applications will be as undernoted."

26   Not contained in that letter, therefore, was paragraph 5.2 of the solicitor's report: "There is a separate report before this Committee providing an update of the taxi inspections in the period January to July 2010." This is a reference to item 2 on the agenda.

27   The report was not in front of me but relates to a practice of the licensing authority of ordering "random" tests in terms of paragraph 13 of the defenders' schedule of conditions
[18]. Like the tests that precede renewal applications, these are not essentially aimed at roadworthiness but at "...the standard expected by the licensing authority...defects in the condition of the vehicle or in any fittings, equipment, signs etc..." The guidelines on standards
[19] place a high emphasis on the appearance and cleanliness of the vehicle.

28   The results of the tests carried out in November and December 2009
[20] were before me and appendix 2
[21] shows that 24 vehicles were examined. Ten failed although they all passed on representation. Of the six taxis belonging to the pursuer, five failed first time.

29   At paragraph 36 of its statement of reasons
[22], the Committee say it "...had regard to the applicant's trading history and appearance before the Committee." Councillor Crichton thought that "vehicle management history" might be better than "trading history". He thought that both the earlier report and the more recent history of the pursuer's random checks
[23] were unfavourable to the pursuer and were taken into account by the Committee.

30   That this is so may be seen from the terms of paragraphs 36 to 38 of the reasons
[24] in which 37 is the key conclusion:

"The applicant failed to demonstrate any system in place to ensure that his motor vehicles were road worthy at all times whilst operating as taxis. The applicant did not show any regard to the terms of the licence conditions under which the applicant and vehicles operated, nor for public safety, road safety or the law."

31   In my view, in taking into account the pursuer's failures in the two sets of random tests as well as those in the pre-application tests, the defenders acted in a manner contrary to natural justice. The fact that the pursuer may have been aware from other sources of the outcome of these tests does not affect the fact that the pursuer was given no notice that these matters would be before the Committee. He certainly was not warned that they would be expanded to a general assertion of a lack of any proper scheme of maintenance. In this regard, I consider that the pursuer was given an unfair hearing by the defenders.

32   It seems to me that the lack of notice of the intention to take into account the results of random checks may well have had practical effects: The pursuer attended the meeting on his own, without legal assistance. This and his attitude were matters on which Councillor Crichton commented. Had the pursuer been alerted to the nature and extent of the material to be taken into account, he might have sought legal representation and presented in a manner more acceptable to the Committee.

33   Quite strikingly, Mr Webster told me the names of the men who carry out the maintenance of his vehicles. He said he had not told the Committee this because he had not been asked. Had the issue of his maintenance practices been properly focussed in advance, I consider it likely that he would have detailed them to the Committee in a way in which he omitted to do.

34   In the circumstances, I hold that the Committee reached their decision in a manner contrary to natural justice.

(IV) fit and proper person

35   In light of the conclusions I have reached in relation to grounds (I) and (III) I shall uphold the appeal. I now consider the submission that there was no basis in fact on which the Committee could have made the findings on which they based the conclusion that the pursuer was not a fit and proper person in the context of a decision as to which remedy to grant.

36   The answers for the defenders quote paragraphs 32 to 39 of the statement of reasons
[25] for reaching the view in paragraph 39 that the pursuer's "...blatant disregard for the law and the licensing conditions applicable to him and the vehicles" demonstrated his unfitness to hold the licence and constituted another good reason for refusal.

37   The elements referred to are:

(a) the "illegal" tyre on one vehicle [erroneously pluralised in paragraph 32];

(b) the pursuer's explanation of the use of vehicles for cruise ship trade in terms of section 22(c) of the 1982 Act; and

(c) the lack of any system of maintenance.

(a) the tyre

38   There was no detail of the nature of the illegality of the tyre before me or before the Committee.

(b) the cruise ship trade

39   The Committee made no finding of unlawful use of any vehicle between licences. Their concern seems to have been the cruise ship trade rather than the allegations of use on Friday and Saturday nights. I reject the Committee's assertion that it was for the applicant to show that his use of the vehicles after their licences had ended was lawful. The fact that they felt the need to invert the onus as they did suggests that there was no acceptable material before them that it was not.

(c) maintenance

40   Having heard his oral evidence, I accept that the pursuer may have said things which led the Committee to believe that he was using the random and pre-application checks required of his vehicles as the mainstay of his maintenance programme. I think his position is more nuanced than that.

41   But even at its highest, such an approach does not demonstrate that he "did not show any regard to the terms of the licence conditions under which the applicant and vehicles operated, nor for public safety, road safety or the law
[26]."

42   Although it was news to Councillor Crichton, it is apparent from paragraph 14 of the Council's schedule of conditions
[27] that the rules anticipate a couple of failures of random tests. At worst for the pursuer, he was playing by the letter rather than the spirit of the rules. Even this must be taken against the background of the conflict frankly narrated by the Councillor between the approaches of the trade and the Committee when it comes to the importance of physical blemishes on vehicles.

43   I accept Miss Herd's submission that disregard of the licence conditions must extend to non-compliance to demonstrate unfitness. Here, at most, we have someone playing the system.

44   Taking all the elements relied upon by the defenders in their decision to refuse, I find that they could not justify the conclusion reached. Nor was there any other material before them to justify a refusal on any of the grounds set out in paragraph 5(3) of schedule 1.

45   In these circumstances, the proper course in my view is to reverse the decisions complained of in terms of the first and second craves.

46   I shall reserve the issue of expenses.

Mungo Bovey QC

Sheriff

May 2011