Scottish council wins appeal after refusing pedicab driver’s application for rickshaw licence

Lord Malcolm
Lord Malcolm

A pedicab driver who successfully challenged a Scottish local authority’s refusal to grant him a rickshaw licence has seen the decision overturned after the council successfully appealed to the Inner House of the Court of Session.

The council licensing committee’s decision to refuse the application has been reinstated after the judges upheld the local authority’s appeal and quashed the sheriff’s ruling.

Lord Brodie, Lord Malcolm (pictured) and Sheriff Principal Stephen QC heard that Robin Birrell had applied to Glasgow City Council for a street trader’s licence to allow him to carry fare-paying passengers in a pedal powered rickshaw, known as a pedicab.

But the application was refused by the council’s licensing and regulatory committee on the basis of certain safety concerns, in terms of paragraph 5(3) of schedule 1 to the Civic Government (Scotland) Act 1982, which provides that a licensing authority shall refuse such an application if, in their opinion, the vehicle is “not suitable or convenient for the conduct of the activity having regard to its condition and the nature and extent of the proposed activity”.

A pedicab provides a single lap belt to be used by up to three passengers, but the committee noted that passengers were not provided with individual three-point seatbelts.

The committee was also concerned about the fact the pedicab had no roll cage, and the absence of official build standards for rickshaws.

In reaching its decision the committee relied upon advice tendered by the chief constable of the then Strathclyde Police, and by the executive director of the land and environmental services department of the council (LES) following upon an inspection of the pedicab.

However, Mr Birrell was successful in an appeal against the committee’s decision heard by the sheriff at Glasgow, who took the view that there was “no material” to support the refusal, and that “any reasonable committee would have granted the application”.

He quashed the refusal and remitted the matter to the committee with an order to grant the application, but the sheriff’s decision was appealed to the Inner House.

The appeal judges were satisfied that the sheriff “erred” in taking the view that there was no material to support the refusal and in concluding that the decision was “irrational” and “in breach of the rules of natural justice”.

Delivering the opinion of the court, Lord Malcolm said: “Contrary to the view taken by the learned sheriff, we are of the opinion that there was more than sufficient material before the committee to support and justify the decision.

“The pedicab could not be fitted with individual three-point seatbelts, nor with a roll cage. For reasons that are not difficult to understand, this was a matter of concern for both thechief constable and the executive director.

“Bearing in mind that the relevant statutory provision requires the committee to form its own opinion on such issues, its members were fully entitled to conclude that those features were ‘essential to provide for the reasonable safety of members of the public’ in the event of an accident or collision, thus the vehicle was not suitable for the proposed activity.

“It is important to remember that the court cannot review the merits of the administrative decision, which is essentially a discretionary judgment for the committee. This is perhaps particularly so in respect of safety issues, which are often matters of impression.

“The weight to be attached to any factor is again for the committee, not the court. The question is not whether the decision was correct, but whether the committee was entitled to reach it.”

He added: “While no doubt a different committee might reach another view, the concerns flowing from the absence of individual three-point seatbelts and a roll cage are uncomplicated and easily understood.

“We have had regard to the full terms of the note of argument and the other material presented in support of the sheriff’s decision; however we are satisfied that there was no sound basis for interfering with the discretionary administrative decision taken by the committee.

“We shall uphold the appeal and quash the sheriff’s decision. The effect of this is that the committee’s decision to refuse the application is reinstated.”

© Scottish Legal News Ltd 2021

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