EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Philip Lord Wheatley Lord Marnoch	[2008] CSIH 8 XA186/06 OPINION OF THE COURT delivered by LORD MARNOCH in APPEAL From the Sheriffdom of Grampian, Highland & Islands at Aberdeen in the cause MR. JAMES WILSON Pursuer and Appellant; against ABERDEEN CITY COUNCIL Defenders and Respondents: _______

Act: Lindsay, Beveridge & Kellas (Taggart Neil Mathers, Aberdeen) (Pursuer and Appellant)

Alt: Hajducki, Q.C.; Morton Fraser (Aberdeen City Council) (Defenders and Respondents)

20 December 2007

[1] This is an appeal against the decision of the sheriff in a Summary Application in which it was sought to impugn the validity of a refusal by the defenders and respondents to allow substitution of a vehicle in respect of a taxi licence held by the pursuer and appellant in terms of para. 9(2) of Schedule 1 and section 10(5) of the Civic Government (Scotland) Act 1982. The appeal proceeds under para. 18(12) of that Act.

[2] The sheriff upheld the refusal and in our opinion correctly identified the dispute as being truly focused on the validity or otherwise of the respondents' policy in relation to the initial grant of taxi licences having regard to the need for wheelchair access. That policy was to require all persons applying for a licence after 19 August 1994 to provide a vehicle having such access. The appellant was a post-1994 applicant and did provide such a vehicle in respect of which he now seeks to "substitute" a vehicle without that facility.

[3] The question at issue has perhaps been bedevilled by the respondents' reliance, in this context, on section 10(2) of the 1982 Act which provides that:

"(2) A licensing authority shall not grant or renew a taxi licence or private hire car licence unless they are satisfied that the vehicle to which the licence is to relate is suitable in type, size and design for use as a taxi or private hire car, as the case may be, and is safe for that use, and that there is in force in relation to the vehicle such a policy of insurance or such security as complies with Part 6 of the Road Traffic Act 1972."

These same requirements, we might add, have to be met in relation to substitute vehicles and the respondents' position was that they could exercise an unfettered discretion in deciding what vehicles to approve. However, exclusive reliance on that subsection does give rise to the argument strongly advanced by counsel for the appellant, namely that its requirements cannot be applied piecemeal or differentially as between identical vehicles but, on the contrary, must be applied consistently to all taxis within the area covered by the local authority. We see the force of that argument and it may well be that reliance might better have been placed on, for instance, para. 5 of Schedule 1 to the Act which does allow conditions to be attached to individual licences.

[4] All that said, we cannot be other than wholly sympathetic to a policy which in the end, we accept, envisages that the whole taxi fleet in the Aberdeen area will be wheelchair accessible as, indeed, has already been achieved in other local authority areas within Scotland. If that policy has to be justified within the strict parameters of section 10(2) of the Act, then we think that the sting of the argument advanced by counsel for the appellant is largely drawn if one views the policy as being, in effect, a decision by the Council that as from 19 August 1994 all taxis should ideally be wheelchair accessible with a temporary relaxation being granted, for purely commercial reasons, in favour of pre-1994 operators. Mr. Lindsay submitted strenuously that it was Wednesbury unreasonable to regard 13 years (or even 11 years up to the date of refusal of the appellant's application) as being, in any proper sense, a transitional period. But, in our opinion, that consideration is offset by the rationale set out by the Licensing Committee at para. 9(i) of their Statement of Reasons which is in the following terms:

"(i) ... the Committee considered that they have been attempting to bring

about a change in the type of taxi vehicles in the Aberdeen taxi fleet in the best possible manner. Taxi licence holders entering the trade ought to be aware of the vehicles required to be provided by them. They would be then able to estimate the costs of operating a taxi and could then decide whether they wished to enter the taxi trade in Aberdeen as operator. If the costs were too high, they could elect to enter into another business. Persons who had operated saloon cars before the present policy was introduced were in a different situation as the new policy had been introduced after they had entered the trade. The Committee considered that it was not unreasonable to treat them differently from persons who had entered the trade after the wheelchair accessible requirement was introduced."

We might add that there appears to be no shortage of new applicants who are prepared to enter the trade in the knowledge of the respondents' policy.

[5] For all the above reasons we are satisfied that this appeal must be refused.